Who decides the TV debate lineup?

The Nevada Supreme Court's ruling allowing a cable network to exclude Dennis Kucinich from a Democratic presidential debate was barely a blip on the media radar screen, quickly forgotten in the reporting of the caucus victories by Hillary Rodham Clinton and Republican Mitt Romney and the squabble over voting in casinos.

But in the long term, the court decision might prove to be as significant as any of the political events in the Nevada campaign. It constituted the strongest judicial statement yet of news organizations' near-absolute power to control participation in pre-election forums -- including the debates scheduled in California next week in advance of the state's Feb. 5 primary.

Broadcasters' right to exclude candidates they consider marginal has been established at least since a U.S. Supreme Court ruling in a 1998 case involving a state-owned television station in Arkansas that had excluded a congressional candidate from a debate.

The court said the public station couldn't factor candidates' viewpoints into its decisions -- a constitutional restriction on government conduct that probably wouldn't apply to a private broadcaster -- but could bar a candidate with little public support on journalistic grounds.

Kucinich, the Ohio congressman who polls in the low single digits but has a fervent following among his party's anti-war base, presented a different argument to challenge his exclusion from MSNBC's Jan. 15 debate in Nevada: that the cable channel had promised to let him in when he met its standards, then abruptly changed those standards to keep him out.

MSNBC said initially that the debate was open to Democrats who placed in the top four in a national poll. It invited Kucinich on Jan. 9 after a Gallup Poll a few days earlier ranked him fourth. But two days later, after New Mexico Gov. Bill Richardson dropped out of the race, the channel narrowed its criteria to the top three candidates and withdrew Kucinich's invitation.

The day before the debate, a Nevada judge ordered MSNBC to let Kucinich participate, saying the cable operator had entered into a binding contract that it couldn't rescind once the candidate accepted. The state's high court quickly granted review and, an hour before the debate, ruled 7-0 in the cable channel's favor.

In a terse, five-page decision, the court said MSBNC hadn't made a contractual promise to Kucinich, just an invitation that it was free to withdraw. It said that courts have no power to require broadcasters to grant equal access to diverse viewpoints and that the judge's threat to cancel the debate if Kucinich were excluded would amount to an unconstitutional prior restraint on freedom of the press.

The bottom line: Debates, the public's sole opportunity to see competing candidates in a neutral setting, are the prerogative of the sponsoring organizations -- typically, these days, the news media -- which set the criteria and have free rein to alter them.

In California, where debates are scheduled next Wednesday for Republicans and Jan. 31 for Democrats, the sponsors -- the Los Angeles Times, CNN and Politico.com -- have said they will invite any candidate who has finished in the top four in another state and draws at least 5 percent support in a January poll.

Kucinich hasn't been allowed into a debate in any state since Christmas, and it's unclear whether he can meet the 5 percent threshold. Campaign spokesman Tom Staudter said he's confident Kucinich will be allowed to debate unless the sponsors change the rules.

The Nevada ruling drew varying assessments from legal analysts contacted by the San Francisco Chronicle.

Richard Hasen, a professor at Loyola Law School in Los Angeles who runs a widely viewed Web site on election law, electionlawblog.org, said the decision made sense both legally and as public policy.

MSNBC's invitation to Kucinich wasn't binding, Hasen said, because the candidate hadn't left for Nevada before the cable channel pulled the offer. He also said sponsors can reasonably decide to include less-prominent candidates in early debates, then winnow the field in later events so voters won't be "distracted by those who may have interesting viewpoints but little chance."

But Eric Talley, a law professor who teaches contracts at the University of California-Berkeley, said MSNBC's offer may have become legally binding when Kucinich started making arrangements to come to Nevada, telling his staff and posting information about the debate on his campaign Web site. Talley also said the timing of MSNBC's decision was suspicious and suggested political motivation.

(E-mail Bob Egelko at begelko(at)sfchronicle.com.)

(Distributed by Scripps Howard News Service, www.scrippsnews.com.)