The Mayor of New York has always been a player on the national stage. And when it comes to political theatre, the Constitution requires that the show must go on. The right of the public to view debates and other political events is central to democracy. You have a none other than New York politicos Mario Cuomo and Ed Koch to thank when televised debates or election coverage interrupts your favorite shows. It was a lawsuit brought agains them that helped guarantee media access to politicians.
The year was 1977. The Democratic primary for mayor pitted Cuomo against Koch – the eventual victor and later the beloved judge on People’s Court. In September, as the primary approached, the candidates were negotiating with the television networks about coverage of campaign night. NBC and CBS would have access to campaign headquarters, but ABC would not.
At that time, ABC, the network of Lost, just couldn't win. The union that organized its camera crews was on strike. It had organized picket lines around the headquarters of the candidates. If ABC’s non-striking crews were to cross the picket line, the candidates feared that the camera crews for NBC and CBS would leave in sympathy.
Like many in New York politics, Koch and Cuomo took the hard line, especially with so much publicity at stake. They threatened ABC’s employees with arrest for criminal trespass if they came to the building to film campaign activities. This was the candidates’ fatal error – when you bring the Police Commissioner into the fray, you’re bringing the Constitution with him. Had the campaign security teams simply ousted the crews, or childishly cut off their power supply, or paid them off to stay away, at most you’d have a quiet case in tort law or contract law. When you bring a so-called “state actor” into the mix, you implicate First Amendment and Fourteenth Amendment rights.
ABC sued on these grounds and demanded access to the campaign headquarters. They asked the trial court to enjoin the police from arresting them if they entered the buildings. The trial court refused to grant the injunction, and the case went up on appeal. The Second Circuit Court of Appeals, one of the most respect courts in the country, reversed and granted the injunction which gave ABC access to the buildings, provided that NBC and CBS did not walk out.
The judge made three points: (1) the event became a “public communications event” as soon as the media was invited (2) once the event is public, the media has equal access to the event, and (3) the First Amendment rights of the viewing public in this case trumped the First Amendment rights of the striking union. Primary elections are as important as general elections, the court noted. People watching ABC that night might never know the debate was even on, if the network aired its schedule as usual.
Koch went on to win the election, despite rumors that he was a closeted homosexual. (“I’m 73 years old,” Koch said in response, “My answer to questions on this subject is f--- off.”). He credits his victory, not to any televised performance, but to the endorsement of the New York Post.
The ruling in ABC v. Cuomo has never been more important than it is now. Today’s political figures have begun to deny access and information to members of the press they simply don’t like. The Second Circuit opinion warns that when politicians can pick and choose between the members of the media, the public loses. Unfortunately, this ruling only applies to the states of New York, Connecticut and Vermont. The White House is outside its jurisdiction.