Before the Circuit Court of Maryland
Jerome M. Segal
Plaintiff
V.
Maryland Public Television
Defendant
Plaintiffs’ Motion for a Preliminary Injunction
Introduction:
The Plaintiff seeks a preliminary injunction prohibiting Maryland Public Television (MPT) a) from any further use of its criteria governing exclusion of candidates in public debates, b) from facilitating any further streaming from their website, or any other streaming source, of the June 6, 2022 debate between candidates in the Maryland Gubernatorial Democratic primary, from which the Plaintiff was excluded. c) from providing the Plaintiff with less than equal time in any programming going forward, d) from any comments to the press that assert that Dr. Segal failed, or fails, to meet MPT criteria for debate inclusion, and especially not to make any statements to the effect that in MPT’s judgment, he is not “a significant candidate.”
These measures are necessary because of the continuing pattern of disregard MPT has shown to a host of laws and regulations prohibiting it from interfering in the primary, in favor of one candidate over another, and because of the ongoing threat to the public interest and the integrity of our electoral process presently posed by MPT.
Time is of the essence. The primary is in three weeks, and the injury is on-going.
This case is brought by Jerome M. Segal, the plaintiff, against the defendant, Maryland Public Television (MPT), in response to prejudicial and unlawful exclusion of Dr. Segal from public television programming, most egregiously his exclusion from a June 6, 2022 televised debate, the only such televised debate of the entire Democratic primary competition for Governor of Maryland.
The pattern of behavior, of exclusion of a candidate from programming, by an agency of the State of Maryland, acting contrary to Maryland law, began six months ago in December 2021, when MPT broadcast a series of interviews with announced Gubernatorial candidates. These ten-minute segments, shown on State Circle, MPT’s Friday news program, were not news stories, but essentially campaign advertisements in which each segment provided a single selected candidate the opportunity to pitch his or her candidacy for 10 minutes. Dr. Segal was excluding from this distribution, by MPT, of free access to State funded television airtime, a uniquely valuable and otherwise highly expensive campaign asset.
For six months, right through the June 6th televised debate, neither Dr. Segal, nor his candidacy in the Democratic Primary, were mentioned in any MPT programming. His exclusion from the only televised debate in the primary contest, effectively defined him out of the race, with MPT having judged his candidacy, in MPT’s language, as failing to be a “significant candidacy” and of him as failing to meet their standard of “a significant candidate.” This was compounded by MPT’s cooperation with commercial networks such as WBAL Channel 11 in Baltimore which not only ran the MPT debate live, but subsequently developed highlighted programming from the debate, that was introduced by a voice-over announcing the segment to viewers as follows: “One-by-one THE candidates for Governor of Maryland lay out their plans for Maryland.” Thus, because of MPT’s blatant disregard of Federal and state law and regulation, including Constitutional protections, the public viewing the debate or subsequent programing based upon it, was led to believe that they were witnessing ALL of the candidates and hearing ALL points of view, when in fact, the sole socialist in the Democratic primary had been intentionally excised from the campaign, affecting not only his candidacy, but the electoral dynamics among the other candidates in the final weeks of the primary.
The initial exclusion from the 10-minute segments that aired on “State Circle” was done without any reliance on publicly identified and accessible criteria, and thus represents a due process violation. The exclusion from the June 6th debate, was supposedly made on the basis of applicable criteria as printed on page 27 of MPT’s Sept. 1, 2021 publication: Editorial Policies: Guidelines for ensuring the integrity and fairness of Maryland Public Television programming and coverage. The Plaintiff was so informed of this upon complaining about the exclusion, prior to the debate, but no specifics were cited.
As will be detailed subsequently, those criteria were not utilized. If they had been, Dr. Segal would have been in the debate, as he exceeded the requirements for inclusion. Thus, his exclusion, as with the prior “State Circle” exclusion was not based on public criteria and thus was also a due process failure. Moreover, Dr. Segal was not given notification of an intent to deprive him of assets to which he was otherwise entitled, and not given an opportunity to argue the merits of his case for inclusion. Thus, due process was denied in a second dimension.
Beyond that, it will be shown subsequently that the criteria that MPT inaccurately maintained were used in Dr. Segal’s exclusion are themselves flawed and in violation of statute, law and constitutional protections. At issue is not the specifics of how MPT defines a “significant candidate” but that it has no authority in law to develop this kind of category for use in determining which candidates in an election can and cannot participate in its free television programming. To the contrary, by law it is forbidden to make any such discriminations, as doing so promotes one candidate over another.
The result of this is that we had, and continue to have, an agency of the State of Maryland, supported by taxpayers’ dollars, under the auspices of a Board, appointed by a Republican Governor, interfering with the dynamics of the Democratic primary, promoting some viable campaigns and not others, all contrary to law and regulation.
This has done, and continues to do, accumulating and irreparable harm to the plaintiff as well as the public interest, without justification in terms of a valid state interest that could not be secured through other non-discriminatory actions.
The Plaintiff therefore seeks injunctive relief to require MPT to halt on-going harm, to prevent future harm, and further asks for compensatory actions by the defendant, to counter-balance, at least, part of the unjustified harm already done.
Time is of the utmost importance in this effort to gain protection against further harm, as early voting in the primary begins on July 7th, and the primary itself is July 19th.
Specifically, Plaintiff requests that:
a) MPT be ordered to not make any further use of its criteria governing exclusion of candidates in public debates.
b) MPT be ordered to not facilitate any further streaming from their website, nor from any other streaming source, of the June 6, 2022 debate between candidates in the Maryland Gubernatorial Democratic primary, from which the Plaintiff was excluded.
c) MPT be ordered to provide the Plaintiff with equal time in any programming going forward.
d) MPT be enjoined from making any comments to the press that assert that Dr. Segal failed, or fails, to meet MPT criteria for debate inclusion, and especially not to make any statements to the effect that in MPT’s judgment, he is not “a significant candidate.”
We also ask the court, as a partial compensatory step that:
1. MPT be required to run on their stations, between now and the primary, a new interview of at least 15 minutes in which Segal is asked the same questions candidates were asked in the debate, and that he be also given an opportunity to respond to the answers given by the other candidates.
2. That within 3 months, MPT be required to air a statewide educational program on the history of democratic socialism in America.
Factual Background
1. The Plaintiff: Jerome Segal
In anticipation of a possible argument from MPT, that in carrying out its educational mission, it does have an inherent authority to make invidious distinctions among candidates, and, is not required to give equal airtime to every crank who manages to pay $159 to run for office, it should be clear that the plaintiff, Dr. Jerome M. Segal, far from being either unknown to the public or having little to say that stimulates public interest, or lacking the capacity to coherently and creatively discuss public issues, is a public figure of some distinction. He is moderately well-known to the general public, and widely recognized among experts in various fields for his analytic skill and policy creativity.
Specifically:
- Dr. Segal holds a Ph.D. in philosophy from the University of Michigan and holds an additional Master’s degree in public policy from the Hubert Humphrey School of Public Policy at The University of Minnesota.
- He worked on the Congressional staff of Congressman Donald M. Fraser of Minnesota, including in New York when Fraser was a member of the U.S. Delegation to the United Nations. He was on the staff of the House Budget Committee, and subsequently served at The Agency for International Development, where he was, first, The Coordinator for the Near East in the policy bureau, and then, Senior Advisor for Agency Planning. He then returned to the academic world, spending 25 years at the U of Md. School of Public Policy, with grants from The Ford Foundation, The Sloan Foundation, The MacArthur Foundation and The U.S. Institute of Peace.
- Following publication in The Washington Post of an extensive story on his pathbreaking research into the negotiability of Jerusalem, at the request of the Clinton White House, he provided memos for the President’s briefing book for the Camp David negotiations, and he has engaged with Israeli and Palestinian prime ministers and presidents.
- The Government of Norway funded secret track-2 meetings of top Israeli and Palestinian negotiators, that Segal chaired, and which focused on new ideas he has developed on intractable issues such the Palestinian refugees’ claimed ”right of return” and Israel’s demand for recognition as a Jewish state.
- He has taught at some of the best schools in the United States, including The University of Michigan, The University of Pennsylvania, and Princeton University.
- He has published 7 books, covering a wide array of issues. And has received considerable recognition for his work. His book on the Bible was pronounced “brilliant” by Jack Miles, the editor of the Norton Anthology of World Religions; “Creating the Palestinian State” was praised by Senator George McGovern as “visionary” and judged by I.F. Stone to be “marvelous”; the cover of his new book, “The Olive Branch from Palestine” quotes Robert Malley, aide to Presidents Obama, Clinton and Biden saying: “Jerome Segal – on Israel-Palestine, no one more creative,” and Noam Chomsky wrote the foreword. His book, “Graceful Simplicity,” which became the foundation of bread and roses socialism, was a selection of The Book of the Month Club and The Quality Paperback Book Club, and was translated into Danish and Chinese.
- Segal has published over 100 op-ed pieces and essays, including 4 in The New York Times and 11 in The Washington Post. He has co-authored with Nobel Prize Winner Thomas C. Schelling, and with Israeli Foreign Minister Shlomo ben-Ami, and with European Union High Commissioner for Foreign and Security Policy, Javier Solana.
- He has been the subject of news stories in The New York Times on three occasions, and the Times also did a profile piece about him. The Washington Post ran a lengthy article about his research on Jerusalem, and devoted a full page in the Style section to his advocacy of simple living and his actually, very busy, life. He has been positively cited or discussed in editorials both in The Washington Post and The Baltimore Sun, and his book reviews of Karen Armstrong’s and James Kugel’s books on The Bible were on the cover of The Washington Post Book Review section.
- In 2018, Segal challenged Senator Ben Cardin for the Democratic Party’s nomination for Senator. Of six challengers to Cardin, he came in second, with over 20,000 votes; he then started a new political party, The Bread and Roses Party of Maryland, presented 20,000 signatures to the Maryland Board of Elections, attained formal recognition from the State of Maryland, and then, in 2020, was the Party’s nominee for President of the United States, appearing on the ballot with Donald Trump and Joe Biden. In the weeks before the election, 60,000 Marylanders visited the Bread and Roses website.
2. The Defendant: Maryland Public Television (MPT)
MPT has a complex legal status. It is:
- An agency of the State of Maryland.
- A not-for-profit corporation.
- A broadcast network that operates six television stations under the Authority of the Maryland Public Broadcast Commission, which holds the FCC broadcast license utilized by MPT. The Commission, in turn, is a division of the State of Maryland Department of Education, and is governed by appointees of the Governor of Maryland.
As such, MPT is subject to multiple layers of law and regulation as well as Constitutional constraints imposed by both the US and Maryland Constitutions.
3. Dr. Segal’s participation in Gubernatorial forums throughout the state.
Central to this appeal for injunctive relief is MPT’s exclusion of Dr. Segal from its televised debate, and until very recently, from its televised candidate interviews. Segal’s exclusion occurred despite his having been viewed as a legitimate candidate by hosts of organizations throughout the state, including the Democratic Party itself, and, as such, he has participated in their candidate forum’s or interviews. The hosting organizations that have welcome Dr. Segal include but are not limited to:
1. Ashbury Democratic Club
2. Lower Shore Democratic Caucus
3. Temple Solel
4. Jarrettsville/Norrisville Community
5. Maryland Association of Community Colleges
6. Frostburg State Univ., Allegany College, Garrett College
7. The African American Coalition of Howard County
8. Junior League of Maryland
9. AAPI DLC
10. Howard County Chamber
11. WFMD News (forum)
12. D9 Coalition for Civic Engagement
13. MBFF News (forum)
14. ABC7 (forum)
15. Shepherd’s Table
16. Maryland Democratic Party (5/26 Gala)
17. Maryland Democratic Party (Rocky Gap Gala)
18. Maryland State Bar Association
19. Black Ministers Conference of Montgomery County
20. Maryland Matters (3/8 forum)
21. Maryland Matters (3/9 forum)
22. Maryland Democratic Party (3/15 forum)
23. Maryland Democratic Party (4/13 forum)
24. Maryland Democratic Party (6/2 forum)
25. Our Maryland
26. United Seniors of Greater Maryland
27. Wicomico Democrats
28. Maryland State Education Associate (Spring Assembly)
29. Roosevelt Club
30. Maryland League of Conservation Voters
31. City of Bowie (4/12 Candidate Forum Night)
32. Prince George’s County Democratic Central Committee
33. Queen Anne’s County Democrats
34. Bethesda Magazine/Bethesda Beat
35. Baltimore United
36. Democratic Club of Riderwood Village
37. Democratic State Central Committee
38. Village of Friendship Heights
39. Baltimore City Community College
40. Prince George’s County Volunteer Fire and Rescue Association
In all of these events, Dr. Segal was treated in a manner identical to the other candidates in the primary. Indeed, at the two largest events sponsored by The Democratic Party, Segal was chosen to be the first of the Gubernatorial candidates to speak, coming immediately after Senator Van Hollen and Senator Cardin. Thus, MPT’s decision to exclude Dr. Segal from the airways, starting with his exclusion from the “State Circle” interviews in December 2021, and running through his exclusion from the June 6, 2022 televised debate, was not only without authorization, and contrary to law, but contrary to reason as well.
3. Dr. Segal’s standing before the court.
Dr. Segal comes before the court in a multiplicity of roles, each with its own legal status and rights:
- As a citizen.
- As a representative voter.
- As a candidate for public office.
- As chairman of the Campaign Committee, Jerome M. Segal for Governor, and,
- As the president of Bread and Roses, an incorporated entity, seeking to build a mass movement of the same name.
The four behaviors of MPT at issue are:
a) On June 6, 2022, MPT hosted and aired throughout the state, the only televised debate of the entire primary season. Dr. Segal was excluded from this event. MPT cooperated with commercial television to air this debate even more widely.
b) Starting in December 2021, MPT aired 10 minute “interviews” with the candidates for Governor in the Democratic Primary. Dr. Segal was excluded from this “Ask the Candidates” programming. He was added only in June after lodging a complaint over his exclusion from the televised debate. These were not news interviews, but essentially, self-promotions by each candidate.
c) The June 6th televised debate from which Dr. Segal was excluded, continues to be streamed to the public, and shared with the media, (see Exhibit A: very damaging photo of line up of candidates at debate, appeared Sunday, June 27, 2022, Baltimore Sun, three weeks after the debate).
d) The “Ask the Candidate” ‘interviews’ were placed on MPT’s website many months ago and have been continuously streamed through the entire length of the primary.
Argument
The elements to be established in a request for a preliminary injunction are fourfold.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)
and
“A party seeking a preliminary injunction must demonstrate “(1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017).
The plaintiff will satisfy each condition:
I. First requirement: Substantial likelihood that Dr. Segal would prevail on the merits.
A. Controlling legal authority
MPT is a non-profit corporation with 501c3 status. As an agency of the State of Maryland, as a broadcaster pursuant to a FCC license, MPT is under an array of regulation and state laws, as well as provisions of the Maryland and US Constitution. These include:
1) Section 13-236 of the Maryland election law article, as stated by the Maryland Board of Elections in “Summary Guide: Maryland Candidacy and Campaign Laws” :
“5. State Funded Entities
An entity that at any time during the election cycle derives the majority of its operating funds from the State may not make a contribution to a political committee during the election cycle.
- § 13-236 of the Election Law Article “
MPT violated and continues to violate this provision of law by discriminatory programming directed against Dr. Segal, which denies him the in-kind contributions made through free airtime to the other candidates.
2) Maryland State Code under which the Maryland State Broadcast Commission (under whose authority MPT exists) was established:
Article 24-206. Use of facilities and programs:
“Use of facilities for biased partisan politics prohibited
a) The facilities of the Commission may not be used for and the programs may not be devoted to:
1) Presenting biased or one-sided aspect of partisan politics;
2) Advocating or opposing any present or prospective political candidacy …”
Section (1) above was violated in that the exclusion from the MPT debate of the only socialist candidate in the Democratic Party’s Gubernatorial primary resulted in a one-sided presentation of a central aspect of partisan politics, specifically it excluded Dr. Segal’s views that almost all of the issues under discussion in the partisan debate were themselves pathologies of the broader system of advanced market capitalism, and that the real solutions were not to be found in what the other candidates were advocating, but in a transition to bread and roses socialism.
Further Article (2) was also violated in that excluding Dr. Segal from an opportunity to present his views and candidacy from a free platform afforded to all the other candidates constituted “opposing [a] present or prospective candidacy.”
3) MPT is bound by Federal tax regulations that forbid 501(c)(3) organizations from contributing to political campaigns. These have been violated
4) MPT is bound by the “equal time” doctrine in 47 U.S.C. 315 – Candidates for Public Office:
“If any licensee shall permit any person who is a legally qualified candidate for any 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.”
This has been violated.
5) Dr. Segal retains protections under the U.S. and Maryland constitutions against state actions that 1) violate his first amendment freedoms as a citizen, 2) which violate his rights as a representative voter, under the Maryland Constitution, and 3) violate his freedom of assembly as the founder and president of Bread and Roses, Inc.
Exclusions and Criteria
There are several different laws that prohibit the two exclusions from airtime that occurred. These prohibitions arise because the exclusion of one candidate makes impermissible the in-kind contribution of free airtime to the other campaigns, and such exclusions serve to promote some campaigns and not others, both on their face prohibited.
But beyond these issues there is a violation of Constitutional rights to speech and assembly, by arbitrarily denying access to public resources to one individual or political movement, whether or not there was a specific ban on contributions or favoring one campaign over another.
This framework is over-layered with required due process protections, such that even if there are permitted exclusions, such actions require due process.
Due process was not met with respect to the “State Circle” exclusions, because no public criteria were involved. And due process was not met in the debate exclusion because a) Dr. Segal was excluded not on the basis of public criteria, but in spite of them, and, further, b) other elements of due process were missing (no notification, no process of challenge or presentation of facts).
In what follows, we will demonstrate that the debate exclusion was not based on the public criteria. Before this however, the question needs to be addressed of the relevance of this to the preliminary injunction. These events were in the past, the argument in favor of the preliminary injunction has to do with threat of future harm.
The answer is two-fold. The threat of future harm exists because given the uncertain Gubernatorial contest, with much of the public still undecided, MPT is likely to provide future coverage or programming of the primary, and unless so ordered by the court, MPT is likely to again fail to treat Dr. Segal equally. And secondly, because the prior harm is on-going as MPT continues to stream the “Ask the Candidate” interviews and the June 6th debate, and this is likely to increase in frequency as the election nears.
Question: Were the public criteria developed by MPT adhered to by MPT in making its debate exclusion decision?
What are the MPT criteria?
The criteria appear in MPT’s Sept. 1, 2021 publication: Editorial Policies: Guidelines for ensuring the integrity and fairness of Maryland Public Television programming and coverage, as follows:
“ Political debates . . .
· Viewpoint-neutral criteria (that is, objective criteria not based on the candidate’s viewpoint or political beliefs) will be used for determining the inclusion of candidates in the debate. These criteria will be applied by MPT’s editorial staff in its good faith judgment in consultation with any co-sponsors of the debate and will be made in accordance with all applicable federal and state laws. Criteria include:
ü Eligibility – The candidate must have met all legal qualifications required by federal and state laws to appear on the ballot and be eligible for office.
ü Active campaign – A candidate must be actively campaigning for election in the jurisdiction that is at issue. For example, if the office is a statewide position, the candidate must be campaigning statewide. To meet the definition of an active campaigner, a candidate would need to establish a campaign headquarters with a paid and/or volunteer staff; generate public interest, such as being invited to speak at public gatherings and obtaining monetary contributions; and have a campaign that would be sufficiently newsworthy to warrant coverage by the media.
ü Significant candidacy – The candidate must demonstrate significant voter interest and support. Polls are one measure of voter interest. A candidate who receives at least 3% in a primary election and 10% in a general election in an established, reliable, nonpartisan poll will be considered a significant candidate. Voter interest may also be measured by votes cast for a candidate in a previous statewide or countywide elected office. Substantial media coverage, financial resources beyond the candidate’s own personal resources, sizable volunteer efforts, or large turnouts at campaign stops may be evidence of significant voter interest.”
These three criteria of 1) Eligibility, 2) Active Campaign and 3) Significant Candidacy are identified as “include(d)” – whether there are others is unclear:
1. Eligibility: No issue arises here. Dr. Segal’s candidacy is registered with the Maryland State Board of Elections.
2. Active Campaign: Presumably MPT accepts that Dr. Segal maintains an active campaign. He has participated in over 40 debates and fora from one end of state to another, as detailed earlier in this brief.
3. Significant Candidacy: The text reads, “The candidate must demonstrate significant voter interest and support.” As noted earlier, MPT provided no process whereby anything could be demonstrated by the candidate. Presumably, it is their judgment Dr. Segal’s “significance” could not be demonstrated.
The ”Significant Candidacy” criteria as stated is complex. For instance, the concept of “voter interest” is utilized but not defined, and various indicators are cited, but then it is said that they “may be evidence” – but this suggest that they might not be, and perhaps that other kinds of evidence might be relevant.
There is however one very clear and precise statement:
“A candidate who receives at least 3% in a primary election and 10% in a general election in an established, reliable, nonpartisan poll will be considered a significant candidate.”
This 3% benchmark is not put forward as a necessary condition, such that falling below 3% in a poll defines a candidacy or candidate as “not being significant” but rather it is stated as a sufficient condition for being “a significant candidate.”
This sufficiency is captured in the phrase “will be considered a significant candidate” – thus, regardless of other criteria, a 3% showing (in an established, reliable, nonpartisan poll) establishes an individual as “a significant candidate.”
Was Dr. Segal, at the time of his exclusion, by that definition, a “significant candidate?” This initially may seem unclear, as at the time of the debate-exclusion decision, there had been no “established, reliable, nonpartisan” polls.
MPT confirmed this absence of an appropriate poll saying, “While there is no appropriate poll to gauge support …” (MPT statement transmitted to Segal campaign 6/3/2022, exhibit B)
The next sentence of their published criteria, however, speaks to an alternative data source that will allow for “significance” to be demonstrated:
“Voter interest may also be measured by votes cast for a candidate in a previous statewide or countywide elected office.”
Using previous election vote counts as the data source, did Dr. Segal meet the 3% standard MPT stated was sufficient to be “considered a significant candidate”?
The answer is “Yes.”
In 2018, Dr. Segal ran in a statewide Democratic Primary just as he is doing now. In that race the contest was for the Democratic nomination for the U. S. Senate. Dr. Segal was one of six individuals who challenged Senator Ben Cardin for the nomination, and his vote total was over 20,000 votes, a number over the 3% threshold. His actual percentage, according to Board of Elections results available on the SBE website, was 3.7%, making Segal the #2 challenger, coming in behind Chelsea Manning, the only challenger with high national name recognition.
That Dr. Segal ran against Senator Cardin was known throughout the state. In the three weeks prior to the election, in both The Washington Post and The Baltimore Sun, Dr. Segal published 21 essays, each the size of two op-ed pieces arguing the case for his candidacy.
Moreover, following the election, he sought to be on the ballot in November as the Candidate of the Bread and Rose Party of Maryland which he formed in the 30 days following the primary by gathering 20,000 signatures. When the Board of Elections denied him ballot access on the basis of Maryland’s so-called “sore loser” law which denies ballot access of any sort in November to a candidate who loses a primary, Segal challenged the Constitutionality of the law in Federal Court. This was widely reported, and on September 13, 2018, The Baltimore Sun ran a long editorial, “Governor Hogan should make common cause with Maryland's new socialist party. Really,” in which the paper supported the thrust of Dr. Segal’s challenge. The point here is simply that Dr. Segal’s 2018 electoral experience was widely reported, and his satisfaction of the MPT criterion for being a “significant candidate” was easy to ascertain, should MPT have taken the matter seriously. What is demonstrated and relevant going forward is MPT’s indifference to the reality pertaining to Dr. Segal and his candidacy.
Use of the MPT Criteria Going Forward?
After the debate, on June 5, 2022, The Baltimore Sun reported what is viewed as the first (and only) independent poll of voter preferences with respect to the primary. In this poll, which sampled 563 voters, Dr. Segal received 1% of the vote sample.
Lest this poll be utilized in a claim that in relation to the MPT criteria Dr. Segal was shown, before the debate (even if after the exclusion decision) to be an “insignificant candidate” and that his claim for a preliminary injunction against MPT should therefore be dismissed, the following points should be noted:
1. The immediate issue at hand is the indifference to the facts about Dr. Segal, even in relation to their own criteria, that MTV displayed in reaching its exclusion of Dr. Segal from the June 6th debate, and the threat of unwarranted future harm this indifference (or possible distain towards his point of view ) signals for the future. The poll is question came out weeks after the exclusion decision.
2. The validity of the criteria itself is yet to be discussed, and it will be maintained that it is impermissible to use such criteria, in view of state and federal law and Constitutional protections.
3. Independent of the criteria’s validity, MPT never set 3% as a necessary condition of “significance” but rather as a sufficient condition. Thus, failure to achieve 3% even within MPT’s framework does not imply “insignificance.”
4. The Baltimore Sun poll had a margin of error of 4.1%, thus making it possible that Dr. Segal’s actual numbers were as high as 5.1%
5. In the Sun Poll all the candidates received low numbers:
Peter Franchot 20%
Wes Moore 15%
Tom Perez 12%
Rushern Baker 7%
Doug Gansler 4%
John King 4%
Ashwani Jain 2%
Jerome Segal 1%
John Baron 1%
Ralph Jaffe 1%
There are two reasons for this and they both demonstrate the perils to vital state interests of employing such criteria to justify exclusion from the public airways, even if such exclusions were permitted. First, 31% of the public was undecided. If this had been larger, the numbers for each candidate would have been even lower. Secondly: having a large number of candidates in the contest, almost always results in low poll numbers for each candidate. In the poll there were 10 candidates.
These two factors combine. After subtracting the 31% that were undecided, this left 69% to be divided 10 ways, with an average of 6.9% for each candidate. With a margin of error of 4.1%, any candidate with the average number in the sample, in reality could be as low as 2.8% (6.9% - 4.1%).
5. Applying the margin of error of 4.1% to the reported numbers, it is possible that the actual voter preferences for the following candidates could actually be below 3%. Here is the arithmetic:
Rushern Baker 2.9% (7% - 4.1%)
Doug Gansler 0% (4% – 4.1%)
John King 0% (4% – 4.1%)
Ashwani Jain 0% (2% – 4.1%)
John Baron 0% (1% – 4.1%)
Ralph Jaffe 0% ( 1% - 4.1%)
6. All of this speaks to the inadmissibility of the use of such criteria. Imagine if the sample of 563 voters had been distributed slightly differently and, say, John King had polled under 3% rather than at 4%, (that is, what if he had gotten 6 fewer votes) and that as a result MPT had cut him from the debate – essentially destroying the candidacy of a figure viewed as having a fighting chance to win the primary and to be Maryland’s next Governor. It is beyond reason, that in passing legislation prohibiting MPT from taking actions that favor or harm the candidacy of participants in an election, that the Maryland legislature intended that there be unmentioned, but implied, powers to set criteria of inclusion that could have such results.
Is it Permissible for MPT to Exclude Candidates from Debates Based on Their Judgment of the Significance of the Candidate or Candidacy?
Monetary vs in-kind Contributions
Several of the applicable laws and regulations that govern MPT have provisions that prohibit contributions to political campaigns, or more generally prohibit actions that favor one candidate over another. Yet MPT by determining who can and who cannot participate in publicly funded debates, based on their judgments of “significance,” does just that. There is nothing in the two Maryland laws in question, Section 13-236 of the election law or in Maryland State Code 24-206 which authorize MPT to ignore these prohibitions, by developing and then utilizing a criteria of significance.
In going beyond the two criteria of eligibility and being an active candidate, by developing and utilizing its so called “serious candidacy” criteria, MPT was breaking the law. This is not a situation in which the State of Maryland enacts laws that might violate constitutional rights, and questions of the extent and power of Constitutionally protected rights have to be weighed against the states’ authority to pursue the public interest. This is a case of a state agency, acting contrary to the laws of the state.
There is no serious question that providing each candidate with 10 minutes of television time to present their candidacy is an “in kind” contribution of enormous magnitude given the cost of television time. Similarly, through a televised debate, giving each included candidate an opportunity to present their views to the voters, is also an “in kind” contribution. MPT provided this free airtime over six different TV stations, blanketing the entire state.
Indeed, such contributions are momentous when they are made in the early stages of campaigns, as they shape perceptions and awareness of both the public and the media, and these in turn affect further press coverage, contributions and polling numbers, which in turn affect who is “in the horse-race” and who is not, the central criteria for further coverage by the media.
MPT cannot take refuge in the fact that it did not make a monetary contribution to all the campaigns but one, and that it only made a non-monetary contribution.
“In kind” contributions are squarely within the scope of law and regulation prohibiting or limiting contributions. In-kind contributions must be reported in all campaign expenditure reports in every state in the country, and on all Federal Election Committee contribution reports, and all similar reports required by the State of Maryland. Their value is subject to the value limits of contributions set in law and statute (e.g., “no corporation may make a contribution in the election cycle of more than $6,000”) and on a dollar-for-dollar basis, the value of in-kind contributions are added to monetary contributions in determining whether contribution limits in law and regulation have been exceeded.
This is non-controversial, and its logic is apparent if one considers a situation in which rather than excluding one candidate, MPT had excluded all candidates except one, and gave only that one, free access to the airwaves. Though no money changed hands, such would be an impermissible contribution to the favored campaign.
It may be argued that the issue is more complex, that under some circumstances in-kind contributions are permitted. For instance, a debate in which all candidates were treated equally would remain a transfer of non-monetary goods to the candidates, yet being equally done, would, by long established practice, be viewed as permissible. This is correct, but what MPT cannot do, is give in-kind contributions to some candidates and not others, and this is just what the use of its “Significant Candidacy” criterion does. MPT was never authorized by law to determine “significant candidacies” and give them a leg up that it denies other candidates it judges to not be “significant.” Rather, it was explicitly restricted from doing that. Were MPT allowed to deny access to public airwaves to candidacies that were behind in the polls, or in raising money, MPT would be making it even more difficult for educational campaigns to reach voters, more difficult for campaigns that didn’t serve wealthy donors or business interests to elect representatives, and more difficult for campaigns that had novel ideas and insights to gradually change the dominant values and beliefs of the public. It is an extraordinary claim that an agency forbidden to interfere in the outcome of elections should be able to allocate access to public resources in ways that produce such outcomes.
Moreover, MPT’s interference in the dynamics of an election is not limited to harming the excluded candidates and the political movements they represent. If a candidate is driven from a campaign, or suffers a loss of votes, his votes are not distributed evenly among the other candidates. Thus if Dr. Segal’s 2022 votes decline from the 3.7% he received in 2018, to 1% or if he is driven from the campaign altogether, most of his votes will go to the most leftist of the remaining candidates, for instance, more would go to Tom Perez than Peter Franchot. In a tight election this could determine an outcome. Similarly, excluding him from the June debate, excluded him from involvement in the televised blows that the candidates leveled against each other, in a manner not seen before in the primary. Had Dr. Segal been a participant, his criticisms would have focused intensely on some but not other candidates. For instance, at a forum held a few weeks earlier, Dr. Segal heaped ridicule on Wes Moore’s claim that he was endorsed by 85% of the teachers. Had this been seen on television, the impact would have been substantial.
MPT is forbidden from playing any such role.
There can, of course, exist some special situations in which it may be valid for MPT to restrict access to one particular candidate. For instance, suppose among the candidates there was one candidate with a severe case of Tourette Syndrome such that he could not control himself from interrupting other speakers and that he regularly did so with the most inappropriate remarks; he could rightfully be deprived of the free airtime afforded the other candidates, even though this would deny him an in-kind contribution given the others, and disadvantage him in the election. Here the justification is not merely the existence of a valid and important state purpose, but rather that the mission of the agency (e.g., presenting the public with a comprehensible discussion of public issues by the candidates prior to the primary) requires that such candidate not be allowed to participate.
In the case of Dr. Segal, no situation of this sort existed. Even if there is some reasonable purpose served by limiting access to candidates that are leading in the polls, MPT was never authorized to control access in order to focus debates on front runners. It was forbidden from doing anything of the sort.
MPT identified three criteria it uses to determine inclusion/exclusion from debates, eligibility, active candidacy, and significance of candidacy/candidate. We do not challenge eligibility; after all, it is a debate among actual candidates who will appear on the ballot. With respect to whether they can legally use their criteria of “activeness” the matter is highly questionable, as they appear to mandate campaign tactics, such as actively campaigning in all parts of the state, or spending resources on campaign offices. We have not emphasized this, since Dr. Segal’s activeness as a candidate is beyond serious question. The major issue is the third criteria, significance. MPT has no authority to use such a criteria, and it violates Md. Law and Federal statute when it does. Any inherent power to put on a meaningful debate is exhausted once MPT has determined that each contestant is actually registered as a candidate and actively engaging with voters. How the candidate does this, and how well he is doing, are issues MPT is not allowed to use to discriminate among candidates in giving access to public resources. Indeed, for educational campaigns which are part of more long-term freedom of assembly projects, candidates may have quite different objectives. For building a movement to bring real change in society, the depth of impact on individuals may be far more important than the number of votes one receives. MPT appears oblivious to the basic fact that elections nourish democracy through a multiplicity of means, not just vote counts.
Further, even if the Maryland statutes, the IRS regulations and the equal time requirements did not exist, and MPT, rather than acting in violation of state law and regulations, was acting in accord with them, it still could not discriminate by excluding candidates from public airtime, as this would violate the free speech rights and freedom of assembly rights of the excluded parties.
In ballot access cases, deference has been given to states in determining criteria for candidates to appear on the ballot, but even here, it is not sufficient that the state has some compelling purpose for restricting access, rather it has to show that the violation of first amendment rights is necessary, that there does not exist an alternative way of achieving the state’s purpose that does not impinge on such rights.
Thus, even if MPT had been authorized to develop criteria of debate inclusion to ensure that candidates it deemed more likely to win the election had ample time to present their views, it still could not exclude candidates if other ways of achieving this purpose were available. And there were other ways.
For instance, the debate was unusually short, only 60 minutes. Not one of the 40 forums/debates that Dr. Segal participated in was this short. Standard length is 90 minutes, and on occasion 2 hours or more is utilized. MPT could have had a longer debate if it found that 10 candidates on the stage didn’t provide enough time for front runners to lay out their views. Further, following the practice employed in the 2020 Democratic Presidential debates, there could have been two debates with five persons each, if a 10-person debate was judged unwieldy.
Thus, a case for the utilization of MPT’s exclusion criteria cannot be sustained, even if there were not explicit laws forbidding it.
For all of these reasons, we conclude that on the merits, the Plaintiff would win, and we now turn to the remaining three elements required in seeking a preliminary injunction. This can be done briefly, as much of the argumentation above also bears on these elements, and because the remaining elements are more straight-forward.
II. Second Element: Is there a Substantial Threat the Plaintiff Will Suffer Irreparable Injury if the Injunction is Not Granted?
Because the issue centrally involves a Primary election that will occur in a matter of weeks, it is clear that injury to the plaintiff will be irreparable.
Harm at the high end of the spectrum
A major injury threatening the Plaintiff if the injunction is not enforced is that he might be deprived of either victory in the primary or at least a very good showing.
Two points need to be established in support of this claim. First that MPT’s future programming and other future actions can significantly affect the outcome of the election, and second that Dr. Segal retains any possibility of doing well in the election. If MPT programming and actions are of little import or if Dr. Segal has no chance of a good showing, then this particular injury is not a serious threat.
The continuing importance of MPT programming and streaming
Unequal MPT programming or coverage will continue to impact the election dynamics and outcomes whether MPT undertakes any new programming or coverage of the primary, or its impact is primarily the result of the continued streaming of the debate from its website. Both will have impacts, but of different magnitudes. The Plaintiff has requested injunctive relief both from new discriminatory programming and from continued streaming of the June 6th debate.
Future streaming of MPT’s June 6ht televised debate will remain of considerable importance right up to election day. And this is especially the case if MPT continues to cooperate with other media, as witnessed by the Baltimore Sun photos of the debate, showing the 8-invited candidates at their podiums on the debate stage, with, of course, no mention that outside the photo and outside the debate there was another candidate, the Plaintiff.
For those voters who have not paid much attention to the primary and will only do so in the final days of the campaign (almost a third of the electorate) the MPT debate is the encounter to be watched for several reasons: 1) It comes up right at the top if one Googles for a primary debate, 2) As a TV event it has unique production qualities. 3) It was one of the few times when all of the leading candidates were on the stage together. 4) In that sole televised debate, the candidates, for the first time, really took their gloves off. Thus, whether for drama or simply content, if a voter in the last weeks of the campaign wants to devote an hour to deciding who to vote for in the primary, there is no more enticing expenditure of time than to watch it.
Clearly Dr. Segal’s best opportunity in the primary cycle to stand out and to win voters to his bread and roses socialism was to have been able to participate in the debate. His exclusion was a terrible blow to his chances of winning, and even more so to his ability to make a solid showing and to advance his freedom of assembly project of building a new social movement. That said, he still retains some possibility not only of a good showing, but of victory in the campaign.
Here it should be noted:
- In the one poll that exists, the undecideds are the largest group, with 31% of the total. This is 50% more than the votes attributed to the front runner. The race is still wide open.
- The primary race is very tightly contested. Unlike in 2018, it has not evolved into a two-person race, with one candidate polling at 50% and another at 30%. Rather, the lead candidate, Peter Franchot, has only 20%, and the second-place candidate, Wes Moore has 15%, and the third place, Tom Perez has 12%. In the poll, with the candidates having an average of 6.1%, the top three are in that position because others are below 6.1% In particular, Doug Gansler and John King both polled at 4%, and it is likely that in the final weeks their share of the vote total will go up rather than down. This means that the shares of the front runners will decline towards the mean.
- Only one candidate has dropped out, and it is unlikely that others will. This means that when all have voted, the average vote share will be 11.1% (11.1% X 9 = 99.9%). The winner might only be a few points above this level. Theoretically, someone could win with 12% of the vote.
- Can socialist Jerome Segal win? Can he at least do quite well? Given the margin of error of 4.1% in the poll, he could presently be in the 5% range. With 31% undecided, and with weak commitment on behalf of those who expressed a preference in the poll, a strong showing, even victory remains possible.
- According to research by the PEW foundation, 65% of Democratic voters view the term “socialist” as a positive descriptor. Of these 14% see themselves as socialists. In Maryland, when Bernie Sanders, a self-avowed socialist, ran for President against Hilary Clinton he got 35% of the vote.
- Turnout in the election is expected to be very low. Were pro-socialist voter turnout to be high, Segal could get 15% of the vote. Events remain fluid. Perhaps he will be endorsed by Congresswoman Alexandria Ocasio Cortez (AOC) or by Senator Sanders?
So, a threat of great potential injury is posed if MPT is not enjoined from doing further harm to Dr. Segal’s candidacy.
b. Harm at the low end of the spectrum
While denial of victory or even of a good showing is a major harm, it pales in impact to the harm done by a miserable showing.
Much of the injury done by MPT, through its exclusionary programming, starting with the “Ask the Candidate” programming in December 2021 and up to the present, has already occurred and is largely irreparable. However, it is an on-going injury both because of continued streaming of the debate and of the puff-pieces on “Ask the Candidate” and because being viewed as not-a-contender becomes self-fulfilling, with one exclusion leading to another. If MPT continues its discrimination against the Plaintiff, whether in subsequent debates, interviews, or through continued availability on its website of the June 6th debate or the “Ask the Candidate” advertisements of the other candidates, Dr. Segal’s vote count can be expected to be even lower. Perhaps he will get only 1%, perhaps even lower.
This is no small thing, as it will determine whether he, and the movement he is trying to build will ever be taken seriously. It will affect the extent of future news coverage and its character. A strong showing by a new kind of socialism, in principle, could bring national attention and be a triumph for using elections to educate the public and as a form of assembly to affect government. An extremely poor showing, rightly or wrongly, will be interpreted by the general public, but also within the natural constituency for the political movement Dr. Segal is seeking to build, as a signal that there is little public interest, little future opportunity, and perhaps even little merit in bread and roses socialism.
As an individual, Dr. Segal has invested much of his life’s work in this effort, so the extent of the injury speaks for itself. Even in financial terms it will be devastating. In the present primary, Dr. Segal’s personal investment will run between $50,000 - $100,000 – but this is only a small part of what he has put into building Bread and Roses, a project that might not have a future after the primary. In the 2018 primary, largely because of a complete blackout by both the commercial press and MPT (the Senate primary itself was almost totally ignored) Dr. Segal spent an enormous part of his personal assets in an effort to overcome this unwillingness of the media to attend to the primary. In all, he spent over $1.5 million of his own funds. This personal commitment has extended into the present, in the hope that, in the end, he will succeed in putting Bread and Roses on the map. A very poor showing, an outcome MPT has made more likely, will mean that it was all for naught.
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Beyond these concrete aspects of potential injury, MPT’s on-going programming and website streaming, in view of its unwarranted discrimination against Dr. Segal, represents continued infringement on his first amendment rights, and this has been judged by the courts to always constitute significant harm.
“[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
And:
“the loss of First Amendment Freedoms for even minimal periods of time constitute irreparable injury justifying the grant of a preliminary injunction.” Texans For Free Enter. v Texas Ethics Comm ‘n. 732 F.3d 535. 539 (5th Cir. 2013)
In addition to the injunctive relief already discussed, the Plaintiff seeks injunctive relief to prevent MPT from citing supposed non-compliance with the publicly available MPT criteria as the explanation of why Dr. Segal was excluded from the MPT debate. MPT spokespersons have been reported saying exactly this in the press (WBAL News, June 6, 2022, “Democratic Gubernatorial Candidates Debate As Poll Shows 1/3 Likely Voters Undecided”). They never offer any specific reasons Dr. Segal was excluded. The press report then provides a link to the MPT criteria of eligibility, activeness, and significance.
As discussed, those criteria use the phrase “a significant candidate” to characterize the admission standard for the debate. Thus, Dr. Segal, by the authority of an agency of the State of Maryland, and one that draws on the reputation for objectivity of public television, is labeled, to the people of Maryland as failing to be “a significant candidate.”
For a figure of Dr. Segal’s stature and experience this is outrageous, and certainly injurious.
MPT might respond that they do not intend the designation “significant” to mean “worthy of respect” but only seek to convey that Dr. Segal is lacking in polled numbers of likely voters who express an intent to vote for him, and that in no way do they intend a judgment on the merits of whether anyone should vote for him. And they might add, that by denying him access to the debate, they similarly did not intend to convey any judgment about whether he is worth listening to, whether his ideas are sound or whether he contributes to the education of Maryland voters. And all this, about MPT’s intentions may be accurate, but it is also irrelevant with respect to harm and injury MPT has done and may do in the future to Dr. Segal’s reputation and standing.
Further, MPT’s use of the terms “significant candidacy” and “significant candidate” serve to divert attention from a more accurate account of the nature of its criteria, which would be evident had it said, “better funded candidate,” or “candidate doing well in the polls” to delineate which candidates it favored and which it did not.
Thus, we ask the court to prevent MPT from doing further injury to Dr. Segal of this particular sort.
Element Three: Does the Threatened Injury to Dr. Segal Outweigh the threatened harm to MPT if the Injunction is Granted? (balance of equities)
The magnitude of the threatened injury to Dr. Segal is substantial and has just been discussed. On the other hand, if the injunction is granted, including the compensatory measures, (e.g., extra programming in which Dr. Segal is asked the questions the candidates in the debate were given a chance to respond to), what injury does this do to MPT at all?
The only answer that emerges is that it would be an injury to its reputation. This of course is deserved, but moreover, far from being an injury, could serve as a genuine long-term benefit to MPT, were it to respond essentially by cleaning up its act.
As things now stand MPT is not only sloppy and perhaps indifferent with respect to its legal obligations, it is also largely impoverished in its understanding of the potential educational role it can play for the people of Maryland in the way it covers elections. In particular, it needs to shift from an exclusive focus on the horse-race dimension (who is likely to win?) and shift to matters of ideas and policy alternatives. This of course would eviscerate its criteria for debate-exclusion, and would change the nature of its “Ask the Candidates” programming, but it would enable MPT to attain a level of excellence that it presently lacks.
Element Four: Will Granting the Preliminary Injunction Serve the Public Interest?
We have argued throughout that the public interest has been and continues to be disserved by MPT’s discriminatory programming. By interfering in the dynamics of the primary, and by possibly affecting the outcome of the primary, MPT is adversely impacting both the perception and the reality of the legitimacy of our electoral process. Under the present circumstances in our country, any harm to this vital interest must be taken with the utmost seriousness.
In concluding this brief, the Plaintiff wishes to raise two further matters that bear on the public interest:
1) Was the public interest actually harmed by excluding Dr. Segal from the debate, and will it be harmed further if MPT is not enjoined from continuing to limit or exclude him from coverage and programing, including future streaming of past programming?
This question goes to substance. MPT has done much that is illegal and much than have violated Dr. Segal’s rights and the freedom of assembly rights of Bread and Roses, inc. But has it harmed the public interest, in doing so?
Put another way, does Dr. Segal’s candidacy contribute to Maryland, to its people, to its public discourse, to its own self-understanding, and to its search for solution to its multiple problems and ultimately to its quest for a better and more just world?
Big questions to ask about anyone. Here is one distinguished commentator on Dr. Segal’s role in the primary:
Recently, Josh Kurtz, the founder of the prestigious publication, Maryland Matters, wrote:
“If foreign policy expertise was a prerequisite for running for governor, Dr. Jerome Segal, a college lecturer who is seeking the Democratic gubernatorial nomination as a Bread and Roses socialist, might well be in the lead.”
Kurtz went on to detail how Segal is expanding the concept of Governor to emphasize a global dimension often overlooked. This includes:
- Reversing Maryland’s ban on contracts with businesses that boycott Israeli settlements in the West Bank. (Segal would lift the ban, and require labeling on all imports from the settlements)
- 3 Camp David Initiatives: Camp David, which is in Frederick County, Maryland, plays no role in the life of Md. Citizens. Segal proposes:
a) Camp David Summer Camps – Free sleep away camps that would focus on conflict resolution for kids from Baltimore;
b) Camp David Peace Center – An international peace retreat near the real Camp David as a venue for global people-to-people peace making
c) Camp David Institute – A 2-year college-credit-residency in Frederick County, focused on conflict resolution on all levels (from school bullying to global peace) that would affiliate with Maryland colleges.
- A Central America Initiative that would provide for exchanges of government personnel to raise standards in the failing states of Central America. And the establishment in Maryland of an International School of Public Service drawing on Maryland’s civil service expertise to help professionalize government service in Central America and Mexico.
Segal’s innovative ideas go well beyond these. His Bread and Roses Socialism agenda calls for:
- GBE - Guaranteed Basic Employment: A legal right to a 32 hr/week job, with work-sharing incentives to ensure State government isn’t employer of last resort.
- Shrinking Capitalism: Gradually Shifting from 5-days of Job-system work to 4 and then 3 days, expanding Passion-Work, all enabled by reducing transportation costs to 5% of household budget and achieving widespread mortgage-free status (see below)
- Progressive Property Taxes: End single-rate property taxation, instead charge zero percent on homes of low income families and higher rates for McMansions.
- “Near-free EV’s”; A program that would induce General Motors to sell its Wu Ling Mini in Maryland (now sold only in China for $4,500) so that with subsidies the poor could go electric first.
- ZIM – the Zero Interest Mortgage for low-income families so they could become home owners and be mortgage-free in 10-15 years.
- Time-Liberty Laws that would, after 3 years on the job, give employees the right to choose to work parttime in their present job.
- A Childhood Creativity Standard – Making the ability to add to the beauty of the world a fundamental marker of successful primary school education.
- History-First Education - De-emphasizing math in favor of history, especially teaching the 1619 Project, in Maryland classrooms.
- Peremptory Police Challenging: Giving neighborhoods the right to veto individual police officers without having to prove anything.
- “Just-Pricing” for gasoline: Limiting pre-tax gasoline prices to production costs plus 5%-10% profit, and making it a criminal felony for oil companies to boycott Maryland.
- Part-time Retirement – Using Time-Liberty Laws to allow retirees, to retain part of their jobs so long as they can do the work.
Not one of these ideas came up in the 8-person MPT debate from which Dr. Segal was excluded on grounds of not being “a significant candidate.
2) When considering the above list of proposals, it is clear that Dr. Segal, as founder of Bread and Roses Socialism, has a distinct point of view, both about life and about government and public policy. Plaintiff contends that either directly or indirectly, this is the fundamental explanation of his being treated unfairly, and unequally by Maryland Public Television. The question is whether or not this negative orientation towards “out of the mainstream’ points of view by an organ of state government is support or opposed by the Constitution. Or perhaps the Constitution is simply neutral on the matter?
The Supreme Court in explicating the U.S. Constitution has maintained that those with distinct points of view are entitled to fuller protection of their rights than might be accorded the average citizen.
The articulation of this was most sharply developed in Anderson v. Celebrezze, 460 U.S. 780 (1983). The case was a ballot access case involving John Anderson who ran as an independent for President at the time. The argumentation of the court was over how to interpret the infringement on voter rights that would occur if Anderson was denied ballot access. What is particularly relevant is what the court had to say about cases involving “outsider” political groups, such as independents or third parties, or others, outside the mainstream:
“As our cases have held, Page 460 U.S. 793 it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.” (Celebreeze)
In the current case, the “identifiable political group whose members share a particular viewpoint” is Bread and Roses. It’s viewpoint is articulated on it’s website www.BreadandRoses.us and it emerged from The Bread and Roses Party of Maryland, founded by Dr. Segal, and which disbanded as a distinct party so that it would be possible to advance our viewpoint through the Democratic Party, and specifically through Dr. Segal’s candidacy in the Gubernatorial Primary of the Democratic Party. The full policy agenda that appears on Dr. Segal’s campaign website: www.SegalforGovernor.org also appears on the Bread and Roses website.
What this means is that if it were that case that the various Maryland laws that prohibit MPT from favoring one candidate over another did not exist, and even if Maryland law e explicitly authorized MPT to use its “significant candidacy” criterion to determine who could participate in a debate, not only would this be challenged on Constitutional grounds, but it would be “especially difficult for the State to justify [the] restriction. . .” (Celebreeze)
The Court made clear that it was reasoning from a perspective about how the public interest is served by non-traditional candidates, saying:
“Historically, political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have, in time, made their way into the political mainstream.”
So, we conclude, the Court has recognized that the participation of political figures such as Dr. Segal serves important public interests, and that over time, new ideas, such as he brings to Maryland’s public discourse, do make their way into the mainstream. That MPT discriminates against such campaigns because they have yet to win the attention and support of the mainstream, is remarkable (and of course contrary to law and never authorized by the Maryland legislature). It displays a failure to understand the public interest. The Supreme Court however got it right.
This completes our showing that the public interest will be served by issuing the preliminary injunction, as requested.
Respectfully submitted
Date:
/S/
Jerome M. Segal
Pro Se
7910 Takoma Ave
Silver Spring, Md. 20910
301-675-3260
Jerome@jeromesegal.org
Exhibit B
MPT Explanation of Exclusion
Received June 3, 2022 from MPT
Thank you for your inquiry about the planned Democratic primary gubernatorial debate.
MPT policies concerning debates can be found on pages 26 and 27 of the document linked on this page: https://www.mpt.org/about/editorialpolicies/
The policy states: “The debate should serve the public interest. In attempting to provide a valuable, newsworthy program, MPT must balance the desire to present the broadest possible range of ideas, issues, and exposure to candidates while at the same time providing the most useful and meaningful information given limited time and resources.” MPT’s published guidelines go on to say MPT will use “its good faith judgment in consultation with any co-sponsors…”
While there is no independent poll to gauge support, the policy states that, “The candidate must demonstrate significant voter interest and support.” The policy goes on to list several examples, which taken as a whole, your campaign does not meet.
While MPT cannot please everyone, we are confident the guidelines as stated best serve the public interest.
Thank you for your inquiry.