In the last blog I wrote about rod bryan
, I rhetorically asked: what would rod and Lendall prefer? A debate that they were not allowed to participate in, or no debate at all. Yesterday, we got our answer from Lendall, he said he would not be at the debate whining that he was not allowed to participate - instead he would be in NW Arkansas pushing for the real issues he thinks this race is about. As for rod's answer, we got it at about 9:37 this morning in the form of a Petition for Temporary Injuncation: rod bryan v. the Clinton School of Public Affairs and the University of Arkansas. Obviously, Rod would prefer that there be no speech rather than allowing two other candidates have a private debate where they can have adequate time to discuss a variety of issues.
I'm the curious type - so when I heard there was going to be a hearing at 2:30 today on the case - I left work a little early and headed to the courthouse ( I worked till midnight last night, and I'm sick as a dog too.)
The crowd was mainly full of reporters. Then came in the University of Arkansas, headed by the Dean of the Clinton School, Skip Rutherford and his U of A attorney's Jeff Bell and Fred Harrison. The next party there was Rod's lawyer, Sam Hilburn of the Hilburn firm and his associate Quinton May. the hearing took place at Judge Tim Fox's office. i felt a little out of place - since I was not a journalist, I wasn't "with" anyone but me - but I sat with some friends I saw come in.
Just to explain a little what rod was seeking - to put it in the most simple terms - he sought to prevent the U of A and the Clinton School from hosting the debate. To win, rod would have had to show through pleading facts that if the debate were continued he would suffer irreparable harm and that he had a high chance of winning on the merits of the case. ( As per Arkansas Rules of Civil Procedure 65(a) apparently) To do so he was supposed to limit the facts presented to what was in his affidavit and included documents. Additionally, he would have to show a legal basis why the school's action was wrong and why the court could not wait before acting.
Judge Fox was very active in the hearing, giving both sides questions which they answered but not without trouble. The first issue was service - meaning was the petition filed correctly and did everyone get a copy who was entitled. Of course, rod had not served everyone properly- Skip Rutherford is not the head of the U lf A and was not a proper person to receive the summons. the u of A's lawyers decided they wanted to go ahead anyway and skip the technicalities. rod's side had the burden of proof so they went first. the first thing Judge Fox wanted to know was which witnesses was rod going to call. After fumbling around a minute - rod's lawyer decided - none. So no witnesses were called. "this is a legal argument." It was right then I could tell the outcome of the hearing - because if it is just a "legal argument" then it wasn't really about winning on the facts or about irreparable harm but instead it was just obout making some obscure political point. rod didn't testify, which was odd because here was his chance to be heard on his favorite and only real issue "I want free air time" The judge therefore stated he was limited to deciding the case based on rod's affidavit as well as anything he took judicial notice of.
I got a copy of rod's affidavit and pretty much all it said was that there had been two previous debates in which he wasn't allowed to participate, that the Beebe and Hutchinson had agreed to only debate each other, and that the Clinton School is paid for by public funds and therefore they should be forced to open the debate to all four candidates ( rod wanted Lendall to be included but apparently not the write in candidates, I guess they don't count) I could tell the judge was expecting more "meat" as it were to the complaint - and you could tell the judge wanted to hear more facts that just were not available. Judge Fox took rod's attorney through some typical questions - such as - was anything wrong with the candidates agreeing to meet and have a debate in the first place. No, said rod's lawyer. Then was there anything wrong with the school deciding who could come speak to its own students and exclude the public. Again rod's lawyer said that was fine. As I predicted the Judge then turned to AETC v. Forbes
in which the US Supreme Court said AETN was correct to exclude neo nazi Ralph Forbes from a televised congressional debate because he lacked public support. This is where rod's lawyer said there was a difference. This difference was so nuanced that you would have to use a still motion camera to catch it. rod's lawyer, May, stated that the difference was that in the Forbes case, the TV station made the rules and applied content neutral reasons to disallow Forbes. In this case, May claimed that the school merely "adopted" the major candidates agreement to exclude rod and Lendall. This means, according to rod, they adopted the candidates' political stance as well - although what exactly was adopted was never made clear. May was left citing to overturned law, minority opinions, and cases which involved federal laws that do not apply in governor's races. It has been obvious for a long time that rod has no shame, but today's case made it clear he has no game as well, legally speaking.
The real issue in this case is this: Is the Clinton School a designated forum? That is, has the school opened it up to a certain class of speakers to such a degree that they have to allow all in that class to participate, and failing to allow all in the class is prohibited restraint of free speech. The court resoundingly said the answer was no - this might be a designated public forum but rod failed to show that what ever reason the school used to allow only two speakers was unreasonable. It wasn't the school's job to prove their decision was right - it was rod's to show they were wrong and he barely tried. The school's position was this: we are just inviting people to show up - we didn't make any rules - we didn't participate in the candidates memorandum of understanding - we just offered to let them use a room and some chairs. clearly the court saw nothing nefarious was going on. then, the school threw in - by the way - the debate isn't even at the school - its at the Clinton Foundation - which is a totally separate building - rod's lawyer didn't have an answer for that one - and it wasn't even necessary in the end - rod had failed to persuade on the facts and on the law and his case never had a chance to begin with.
So after a fifteen minute recess Judge Fox came back in an quickly announce his ruling: the debate will go on - the facts and law are not compelling to show that there is a good likelihood of success on the merits and therefore the petition for a temporary restraining order is denied.
I knew the lawyers for the U of A and they seemed mildly annoyed at having to appear so suddenly for such a insignificant lawsuit. But, they certainly didn't say so and were just doing their jobs, very well I might add. From talking to others in the room - the obvious question was this - and one that Judge Fox also asked rhetorically ---- if you were going to suffer such irreparable h arm, why didn't you sue before the first debate? before the second debate? Or maybe at least a few days before the third debate? If the rights at stake were so precious why wait? As I told people sitting with me --- I think this was a frivolous action on rod's behalf ( not his lawyers who were just trying to represent a clear hopeless cause) I think this was a lawsuit filed with the purpose of giving rod 5 minutes of publicity because he lacks enough popular support to get any commercials or other ads. He has so little gravitas that the media don't cover his loony antics anymore. So he resorts to the courts - who have to pretty much listen to anyone no matter how inane their cause of action is. Remember the protesters at the first debate? - they tried to shout down Beebe and Hutchinson until they were made to leave. They would prefer no debate rather than allow a debate go on that excludes their egocentric leader. Judge Fox quoted some from the Forbes decision and agreed that debates were very important to the public to allow the public to hear the candidates positions. but at the same time - we have greater freedoms at stake - freedom of association - freedom of the press - freedom of assembly - to prevent the two major candidates from meeting together in front of some students to share their thoughts on some issues would be a sad day for the bill of rights. In rod's youtube commercial - it is clear he thinks he is some type of god-like being and ends his message by stating "if you don't vote for me the whole cosmos will explode into dust.
" ( not a perfect quote, promise) All I see is that after this election the only explosion will be his ego`which will quickly deflate from lack of mildly curious observers.
One last point. Where was Jim Lendall?. As his press release said yesterday, Lendall won't be outside the campaign, whining that he is excluded. To be sure, he would like to debate but he has actually read the Forbes decision and has reluctantly accepted it as the law of the land. he has far too much class to launch a outlandish lawsuit doomed to fail before it is filed. Lendall is keeping his eyes on the prize - he wants at least 3% of the vote
and by actually campaigning instead of embarking on publicity stunts, he may very well succeed.