Adam Beam

Associated Press

FRANKFORT, Ky. — A federal judge has denied Libertarian U.S. Senate candidate David Patterson's request to force a public broadcaster to include him in Monday night's debate between Republican Sen. Mitch McConnell and Democratic challenger Alison Lundergan Grimes.

U.S. District Judge Gregory F. Van Tatenhove ruled that Kentucky Educational Television did not exclude David Patterson from its Kentucky Tonight program solely because of his political views. The U.S. Supreme Court has ruled public broadcasters can exclude candidates based on their level of support but not because of their political views.

"The First Amendment is not a rule of quantity at any cost," Van Tatenhove wrote. "Voters may actually benefit by a forum or debate that includes only those candidates that have a realistic chance of winning rather than many voices competing for very limited time. What KET cannot do is pick and choose candidates based on their viewpoints. KET has not done so here."

KET executive director Shae Hopkins said the station believes "all journalists have the right to decide for themselves who to interview and what issues to cover." But she added that KET will "forever be committed to presenting a diverse array of viewpoints, fairly and objectively."

Libertarian Party of Kentucky chairman Ken Moellman said he was not happy with the decision but said the state party does not have enough money to appeal the ruling. Patterson, in a news release, criticized KET for requiring candidates raise a minimum of $100,000 to appear in the debate.

"That means you must be rich or have rich friends to even stand a chance," Patterson said. "Kentuckians now have their hard-earned tax dollars being used to deprive them of knowing their options when they walk into the ballot box."

Van Tatenhove said the legitimacy of the $100,000 threshold "is not presently at issue." But he did note in a footnote that former Kentucky Congressman William Natcher, who died in 1994 and served 44 years in Congress, refused to accept campaign donations, thus making him ineligible to appear on Kentucky Tonight based on the current criteria.

Patterson argued that KET had discriminated against him based on thousands of pages of emails where KET officials discussed tightening the criteria to participate in the debate so as to exclude non-serious candidates. The emails included one from Mike Brower, KET's senior director of production operations, who wrote the goal of the criteria "is to have a way to defend not including only the most extreme cases, like out of state crusaders, or wacky people who paid the $50 and got 2 names on a form to qualify as a candidate."

But Van Tatenhove pointed to other emails, where KET's executive director wrote their intent was "to follow the law, be fair to all concerned, (and) protect and maintain KET's integrity and reputation for inclusion and fairness."

"When taken as a whole, the picture that emerges is of an institution trying to do the right thing," Van Tatenhove wrote. "Maybe the language of these electronic conversations was at times unartful. Maybe the private thoughts of KET executives, now made public, have the feel of prejudging viewpoints. But it cannot be said that these conversations, many early in a process that included careful consultation with legal counsel, constitute viewpoint discrimination."

McConnell and Grimes are scheduled to appear on KET Monday night at 8 p.m.