Nevada Judge Says NBC Must Include Dennis Kucinich

Late yesterday, a state court Judge in Nevada said that NBC must include Dennis Kucinich (D., Mars) in tonight’s Democratic debate:

A judge in Nevada has just ordered MSNBC to include Rep. Dennis Kucinich in Tuesday’s Democratic Party presidential debate in Las Vegas or he will cancel the forum.

Senior Clark County District Court Judge Charles Thompson vowed to issue an injunction halting the nationally televised debate if MSNBC failed to comply. Kucinich had filed a lawsuit seeking to be included just this morning.


The judge ruled Monday it was a matter of fairness and Nevada voters would benefit from hearing from more than just Hillary Clinton, John Edwards and Barack Obama. Kucinich had been invited to participate in the 6 p.m. Pacific debate Tuesday, but that invitation was rescinded last week following the results of the New Hampshire primary and Iowa caucuses that showed Kucinich trailing badly.

The problem with Judge Thompson’s ruling is that there is no such thing as a Constitution right to “fairness”, whatever that means. The Constitution, does however, have this to say:

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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Where in there does it authorize the state to mandate who should be invited to a completely private affair ?

Yea, I don’t see it either.

Dennis Kucinich doesn’t have a “right” to be invited to tonight’s debate, it’s really just that simple. NBC has said that they would appeal the judge’s decision to Nevada’s Supreme Court. Here’s hoping that the justices restore some sanity to this situation.

Update @4:30pm: NBC has filed it’s appeal with the Nevada Supreme Court:

The NBC television network has asked Nevada’s Supreme Court to overturn a Clark County District Court judge’s decision that Cleveland’s Dennis Kucinich must be allowed to participate in tonight’s debate for Democratic presidential candidates.

In documents filed at the court this morning, the network asserted that it decided on Jan. 10 to change its debate participation criteria, and require that candidates have finished in the top three in either the Iowa Caucus or the New Hampshire Primary.


“The revised criteria governing the January 15th debate are viewpoint neutral, and are in no way designed to exclude any particular candidate based on his or her views,” said NBC’s legal filing. “Instead, the revised criteria represent a good faith editorial choice of a privately-owned cable network to limit debate participants based on the status of their campaigns.”

NBC also questions whether Senior Judge J. Charles Thompson had jurisdiction in the case. It says the Constitution’s First Amendment protects its right to decide who will participate in a cable news debate and that its decision to rescind a prior invitation to Kucinich doesn’t constitute a breach of contract, as the candidate insists.

“If such an unprecedented theory is adopted here, it would mean that news organizations would be forbidden from making timely decisions about who or what to feature in their programming based on daily developments in news for fear that a previously invited guest could assert a breach of contract claim,” the network says in its filing. “Mr. Kucinich’s claim is nothing more than an illegitimate private cause of action designed to impose an equal access requirement that entirely undermines the wide journalistic freedoms enjoyed by news organizations under the First Amendment.”

Copies of NBC’s appeal filings are available in PDF format.

Update @ 8:15pm: The Nevada Supreme Court has reversed the trial judge’s ruling:

This just in from the state Supreme Court: NBC/MSNBC win, Kucinich loses. The congressman from Ohio won’t be on stage at the televised debate in 45 minutes.

He argued that the network offered, and then withdrew, an offer that he participate in the debate, and he protested. The court disagreed.

Finally, some sanity prevails.

  • KipEsquire

    NBC should of course cancel the debate and show Ezra Lavant’s videos instead.

  • sadcox

    But this is a Nevada judge, not a federal judge. Isn’t he bound by the Constitution of the State of Nevada?

    It is up to the states to run elections, not the feds. The argument could be made that he is making sure that his state is running a fair election.

  • Doug Mataconis

    He is bound by the law, including the United States Constitution which is the highest law of the land.

  • Adam Selene

    Although I haven’t read the Nevada Constitution, I’m willing to bet that it says nothing that could be construed to support this explicitly.

  • Kevin


    As Doug correctly says, as a judge, he is bound by the law. The United States Constitution guarantees the right to freedom of the press from government control. Kookcinich has no business at the debate tonight.

  • Amyz

    Kucinch has continually tried to bring back the FCC Fairness doctrine. Kucinich is claiming breach of contract and this:

    Sec 315 of the equal opportunity law: Section 315 [47 U.S.C. §315] Facilities for candidates for public office.

    (a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –

    (1) bona fide newscast,

    (2) bona fide news interview,

    (3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

    (4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),

    shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.

  • MoreCowbell

    The ruling is legit and Dennis Kucinich should be allowed to particpate. NBC is not just any ‘ol “private” party here, they control the PUBLIC AIRWAVES which were created on behalf of the public interest. When we let monopolies (NBC) seize control of public resources and then have the authoritarian power to control which candidates can be heard from, and which cannot — that is a fascist/totalitarian model.

    How about free elections, based on equal access/equal time?

    The power is taken away from the people to decide their own elections, if monopolies control who and who is not allowed on the public airwaves.

    NBC is acting like the Stalinist Soviet Union here.

  • Adam Selene

    Egads, not the “Public Airwaves” argument! Sorry, the public did not create them, they are a fact of physics. The public does not own them, but they are a commons and that requires a means to prevent the tragedy of the commons.

    NBC is a monopoly because the theory of public airwaves led to the regulation of broadcasting by the government, which led to the creation of a monopoly. If you want competitive elections, get rid of the government regulation creating the monopoly.

  • UCrawford

    “How about free elections, based on equal access/equal time?”

    Yeah, because I certainly trust the government to tell me what’s “fair” or “equal”. Especially since the government is a group of politicians and bureaucrats who have an incentive to suppress viewpoints that endanger their continued employment.

    “if monopolies control who and who is not allowed on the public airwaves.”

    The only private monopolies that exist are those that receive government support (through regulations, licensing or decree) to create barriers to entry that bar competitors from the marketplace. Want to get rid of the “monopoly” on the airwaves? The first step should be getting rid of the FCC.

  • UCrawford

    “NBC is acting like the Stalinist Soviet Union here.”

    Yeah, I hear about the gulags they run for dissidents all the time. I hear one of them is going to be the focus of a new reality show now that the writers are on strike.

  • sadcox

    Just to clarify…

    NBC is a private entity, and as far as I’m concerned they should be able to disallow anyone for any reason. If the market doesn’t like their decisions, the market will make them pay.

    I was simply stating what the argument on the other side would probably be, not arguing for it.

  • UCrawford


    “I was simply stating what the argument on the other side would probably be, not arguing for it.”

    Fair enough…devil’s advocates are important to debate too :)

  • Anita

    Dennis was ALREADY INVITED to tonight’s debate as a contender, 6 term congressman and presidential candidate and one who fell within all the criteria to take part in the debate. NBC then UNINVITED him! Since when does the media tell ME who I can listen to and hear, especially when I need to make an informed decision on who I am going to vote for? This is unAmerican, undemocratic and the media TELLING me who I can hear and who I get to vote for. Everyone, get a grip! Dennis is the ONLY ONE who has stood up for the American voter here. Regardless on if he makes president or not, he did the American thing by standing up for the people, not the corporations. If we do not vote him in, simply because of his morals and integrity, then we will get what we deserve…more of the same!

  • Anita

    Another point, the airwaves belong to the people not the corporations. I grew up in a radio station and have worked in media all of my life. My father owned a radio station. He would be rolling over in his grave to see what is happening today with the media, the press and the networks.

  • Adam Selene

    The airwaves don’t belong to the people, they are a fact of physics. The statement you made:

    Another point, the airwaves belong to the people not the corporations.

    betrays a fundamental lack of grounding in the science of radio waves. It does, however, lead to populist claptrap, such as the FCC.