LAS VEGAS - A lower court order that Democratic presidential hopeful Dennis Kucinich be included in a MSNBC candidate debate Tuesday was tossed out a few hours before the debate by the Nevada Supreme Court.
Lawyers for NBC Universal Inc. had asked the high court to overturn the lower court order that the cable TV news network include the Ohio congressman or pull the plug on broadcasting the debate Tuesday night with Hillary Rodham Clinton, Barack Obama and John Edwards.
The Supreme Court's unanimous order said that blocking the debate unless Kucinich got to participate would be "an unconstitutional prior restraint" on the news network's First Amendment rights.
Justics also said the lower court exceeded its jurisdiction by ordering Kucinich's participation even though "he first requested and was denied relief" from the Federal Communications Commission.
"It's a matter of being on stage and answering questions. That's the issue," lawyer Bill McGaha argued for Kucinich during a hearing before four justices in Las Vegas. Three other justices participated by closed-circuit video conference from Carson City.
Donald Campbell, a Las Vegas lawyer representing NBC Universal, accused Kucinich of trying to make a jurisdictional "end run" around the FCC and federal courts by suing in Nevada state court to be added to the debate.
FCC broadcast rules do not apply to cable TV networks, Campbell said, adding that forcing MSNBC to add Kucinich or not broadcast the debate amounted to prior restraint and would be a "clear and unequivocal" violation in First Amendment press freedom.
"Mr. Kucinich's claim ... undermines the wide journalistic freedoms enjoyed by news organizations under the First Amendment," Campbell said in his appeal.
Kucinich emerged from the hearing saying he would make no comment until the justices ruled. He headed for a rally in front of the Las Vegas meeting hall where the debate was scheduled.
Jeremy Gaines, a spokesman for MSNBC, said the cable network also was awaiting a decision from the court. He declined further comment.
Senior Clark County District Court Judge Charles Thompson's order declared the state court had jurisdiction over a dispute involving a debate to be held in Las Vegas, "and that this is a matter which affects the public interest."
The judge decided an initial invitation to Kucinich to debate represented a contract between the candidate and MSNBC, and ruled that if MSNBC doesn't include Kucinich, it was prohibited from broadcasting the debate.
McGaha told the judge on Monday that MSNBC and a Democratic party liaison at first invited Kucinich and then dropped him from the debate.
Campbell said MSNBC decided to go with the top three candidates after the Iowa and New Hampshire primaries.
Kucinich drew less than 2 percent of the Democratic vote in the New Hampshire primary, after attracting little support and no delegates in the Iowa caucus.