(Here is Mediacom's Trial Brief. It is dated November 19, and this time they actually got it filed in the court by about 3:30 pm that day, but I refer to it as November 20 because even though it was for the hearing November 20, they dropped their copy for me in the mail on the 19th! Obviously I hadn't gotten it before the hearing, so they gave me another copy of their 100+ page brief as I walked in to the hearing! Editor's note: In red are my notes I made as I first read this brief, which I made in order to prepare my response. In my response brief, I probably used half the points made here in red. The other half, I just let go without comment on the record.)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVID LEACH, Plaintiff, vs. MEDIACOM, Defendant

DEFENDANT'S SUPPLEMENTAL BRIEF IN RESISTANCE TO PLAINTIFF'S APPLICATION FOR EXPEDIATED PRELIMINARY INJUNCTION

NO: 4:02-CV-70545

 

COMES NOW Greater Des Moines, Iowa Cable Television Company, operated by

MCC Iowa LLC, d/b/a Mediacom ("Mediacom") and files this Supplemental Brief in

Resistance to Plaintiff David Leach's Application for Expedited Preliminary Injunction.

November 19, 2002 FAEGRE & BENSON LLP

By: /s/ Michael A. Giudicessi1 Michael A. Giudicessi, Lead Counsel rngiudicessiC~faegre. corn

By: Is! William J. Hunnicutt

William J. Hunnicutt

whunnicutt@faegre. corn

400 Capital Square

400 Locust Street

Des Moines, IA 50309

Telephone: (515) 248-9000

Facsimile: (515) 248-9010

ATTORNEYS FOR DEFENDANT

 

 

'Filed electronically pursuant to Court Order Misc. No. MI-38 (S.D. Iowa April 30, 2001)

 

 

 

 

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TABLE OF CONTENTS

I. INTRODUCTION 4

II. STATEMENT OF FACTS 6

A. The Regulatory Setting 6

B. The Public Access Channel Requirements 7

C. The City's Abdication of Access Channel Control to Mediacom,

which is not a Government Body or State Actor 9

D. The Dispute with Plaintiff over Unacceptable Program Segments 11

E. Mediacom's Decision to Reject the Segment and its Reasoning

for doing so 14

III. ARGUMENT 15

Plaintiff Cannot Satisfy Any of the Four Dataphase Factors and this

Court Should Refrain From Compelling a Speaker to Disseminate

Content Against Its Will 15

A. Plaintiff is not likely to succeed on the merits of his claims 16

1. Plaintiffs speech is obscene, indecent and unprotected

by the Constitution and accordingly Mediacom' s

rejection of it is permitted by the Cable Act and the cable

television franchise 18

2. The Cable Act and franchise provisions compelling

Mediacom to provide a public access channel and to

refrain from content decisions regarding access

programming are unconstitutional 28

a. The case presents the yet undecided question on

the constitutionality of the Cable Act's public

access channel requirement and no-censorship

provision 28

 

 

 

 

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b. With changes in technology and communication

there is no governmental interest supporting

treatment of a cable operator as a disfavored

speaker and Mediacom should be afforded full

speech and press rights under the Constitution,

including the right to reject or edit programming 33

c. Compelling cable operators to dedicate bandwidth

and forfeit speech rights is neither the least

restrictive means nor is it narrowly tailored to

serve any proffered governmental interest 36

d. Under traditional First Amendment law and under

the developing line of cases barring government-

compelled speech, the Cable Act's public access

channel requirement and editorial control

prohibition are unconstitutional on their face and

as applied to Mediacom through the city's cable

franchise agreement 37

B. Plaintiff has not suffered real, immediate, and irreparable injury

to any constitutional rights 39

C. Preliminary injunctive relief would cause substantial injury to

Mediacom' s constitutional rights 41

D. Entry of a preliminary injunction compelling Mediacom to

disseminate Plaintiffs proposed programming would be against

the public interest 43

E. Plaintiff cannot obtain preliminary injunctive relief without

posting a substantial bond 45

IV. CONCLUSION 46

 

 

 

 

 

 

 

 

 

 

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I. INTRODUCTION

"There is something about a government order compelling someone to utter

or repeat speech that rings legal alarm bells."

Arkansas AFL-CIO v. FCC. 11 F.3d 1430, 1443 (8th Cir.

1993) (Richard S. Arnold, Cl, concurring).

In this case brought solely under 47 U.S.C. § 531(e) (the Cable Act"), Plaintiff David Leach seeks to invoke the power of this Court to order a Des Moines cable television operator, MCC Iowa, LLC, dlb/a Mediacom ("Mediacom"), to cablecast programming against its will. This case involves the rights of Mediacom, which is not a governmental entity and not a state actor, to choose what content it disseminates and to dedicate its channel capacity in the manner it thinks is best for its business, shareholders, subscribers and the communities it serves.

Plaintiff David Leach is an anti-abortion activist of some notoriety. He was active in protests in 1994 at the Planned Parenthood premises in Des Moines, at a time when U.S. Marshals were posted there for public safety. Actually I hardly ever showed up there. I was writing about the place in my Prayer and Action News, and reporting on the trials of those who did protest. The Des Moines Register actually quoted U.S. Marshall Phyllis Henry as saying my writing was the reason for posting the marshals in Des Moines! Although the Des Moines Register reporter told me abortionist Herbert Remer had told her even he didn't consider me capable of any violence. But Henry seemed concerned that my writing might incite somebody else! So I offered, in my Prayer & Action News, and in a letter to Planned Parenthood, free space in my deadly pages for them to hire a writer (the best writer in the world would be cheaper than posting marshals 24 hours a day for a year) in the very pages that concerned them. They didn't send me a word. He and his colleagues, including Regina Dale Dinwiddie, who was convicted of violating the federal clinic access statute see U S v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996), have advocated that it is appropriate to use lethal force to prevent a doctor from performing abortions. Appropriate? How can a lawyer have such difficulty discerning between synonyms? My only boldness was in honestly examining what the Bible said about whether it was justified in God's view. I invited rebuttal, and when it came I gave it full expression, and then analyzed it, and invited further rebuttal to my analysis. He was a signatory to the petition defending Michael Griffin, who was convicted of killing Dr. David Gunn. A lawyer should be able to distinguish between a contract, for example, and a salesman's summary of it. What you have just read is the salesman's summary. The contract I signed did not flatly defend Michael Griffin, but defended a logical syllogism which I could not refute, much as I longed to. Although I was afraid of signing the statement and facing the public, I was more afraid of facing God after not signing a statement which I could not refute, and which seemed important to God. I am still waiting to learn what relevance this line of attack has to Mediacom's duty under federal law to limit its censorship to obscenity, indecency, and nudity. He seems to be making the case that I don't respect the law, but even he is not alleging that my positions are violations of the law; whereas it is very clear that Mediacom does not merely disrespect the law, but breaks it. In that petition, Plaintiff and his co-signers asserted that Griffin's actions were justifiable. His positions on abortion and his advocacy are well documented on web sites he maintains at www.saltshaker.us and www.panews.org. He has linked his web sites to those of associates

 

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where graphic photographs of aborted fetuses are shown, as are the same pictures of persons who are accessing Planned Parenthood facilities in Des Moines and similar clinics elsewhere that are in issue here. His avowed purpose for these messages is to stop doctors from performing abortions and to discourage persons through shame, intimidation, or other means from accessing Planned Parenthood clinics.

"Intimidate" is a word easily used loosely. It has a legal meaning which is a cause of court action; or it can be used in a general sense. For example, it is in a general sense that Mr. Guidicessi sought to intimidate me in trial; but in a legal sense, he is probably not prosecutable for it. He says intimidation is my "avowed purpose", meaning I have publicly used that word to describe my intent, of which I am skeptical. He says my "avowed purpose" is also to shame women seeking abortion. But since he sought to shame me in trial November 20, he surely cannot think it a character flaw to attempt to shame someone. He must agree with me that it can be a noble mission, depending on whether you rightly discern which actions ought to occasion shame.

For some time, Plaintiff has availed himself of the opportunity to place programming on the public access channel provided by the local cable company. His program, the "Uncle Ed. Show," uses the same medium of Wayne and Garth of "Wayne's World" fame, but with a different edge and flare. I didn't know lawyers used this much innuendo. I thought they were scholarly, dispassionate, and accurate. Why associate me with "Wayne's World"? Why not rather associate me with the same medium used by a score of Des Moines Churches to broadcast their services?
The "Uncle Ed. Show" mixes religion and politics, interspersed with music and scripture. It serves as Plaintiffs platform for his anti-abortion campaigns as well as his political candidacies. It also serves as the source for audio and video programming Plaintiff packages for videotape sales through his web sites and for delivery via web-streaming for Internet viewers to see and hear on demand. This makes it sound like my motivation is money, but the fact is I have yet to sell my first tape! Nor have I taken any serious steps to market any tapes, since I never installed a "shopping cart" on my website, nor have I even updated my list of available tapes since I wrote in a few titles 5 years ago! Nor are my expression of my views "just" to help my political candidacy, but the opposite, since most political professionals would agree my views harm my candidacy: Rather, my candidacy is just one more platform for my proclamation of the Gospel, which I understand to include God's jurisdiction over public issues.

Plaintiff asks this Court to require that Mediacom cablecast his programming without the right to edit or reject its content even though Mediacom has concluded that some of Plaintiffs content is unprotected by the Constitution. If Mediacom really thought it had a strong case that my content is unprotected by the Constitution, it would have no need to challenge the federal law. Plaintiff wants to employ the force of government and this Court to compel Mediacom to subject its viewers, including children, to his graphic display of aborted fetuses and his portrayal of persons at the Planned Parenthood clinic in false and intimidating ways. Did you know the word "photograph" has the root of "graphic" in it? How can any photograph NOT be "graphic", if it is a photoGRAPH? It is redundant to call a photograph "graphic". The word normally is reserved for words which paint for the mind a vivid image. In fact, this is the only sense understood by Webster's New Universal unabridged Dictionary, 1979. Only since photos showing what abortion does to babies have been circulated have news reporters been describing photos as "graphic" to a degree great enough to be predictable. They use it as an expression of disgust and contempt. Not that the word itself ever before connoted disgust or contempt, but when news reporters say the word their inflections and facial expressions express disgust and contempt, which helps viewers understand that is the meaning of the word. Have I indeed portrayed "persons at the Planned Parenthood clinic in false and intimidating ways"? What statement of mine is set forth as false? And how does one portray another in an "intimidating way"? He asks this Court to force Mediacom to distribute unprotected speech that it concluded was objectionable, unacceptable, obscene, indecent and potentially actionable. "Obscene" and "indecent", I addressed in my previous brief. "objectionable, unacceptable" to Mediacom simply isn't among the grounds of censorship in Federal law. "Potentially actionable" means someone might sue over it. I have given my reasons why the prospect of a successful suit is remote.

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Entry of the relief sought by Plaintiff would, at best, enforce rights obtained by him through mere legislation at the expense of free speech and free press rights secured to Mediacom under the First Amendment to the United States Constitution. This is a personal attack on the legislative function of U.S. government! He calls it "MERE legislation"! He says "MERE legislation" plays second fiddle to "free speech and free press rights secured to Mediacom". Well, it would if there were a conflict. But Denver says there is no conflict. Plaintiff is not likely to succeed on the merits of his claim and the balance of interests in this case weigh decidedly against entry of a preliminary injunction that would compel Mediacom to publish content against its will.

Mediacom' s actions are not those of government. Given the many alternative channels of communication available to and utilized by the Plaintiff, he is not suffering any irreparable harm to a liberty interest or constitutional right. If Mediacom were correct that it is a private business with no obligation to carry the speech of others, my alternative channels of communication would be irrelevant; whether I "suffered any irreparable harm to a liberty interest or constitutional right" would be irrelevant. Their Constitutional right to not air my content would trump my Constitutional right to express myself. The law does not entitle Plaintiff to a preliminary injunction and entry of one would will cause unjust, irreparable harm to Mediacom, its viewers and the interests of all who seek to preserve the constitutional rights of private parties to be free from government-compelled speech.

 

II. STATEMENT OF FACTS

A. The Regulatory Setting

Pursuant to federal law, including 47 U.S.C. § 521 et seq. (the "Cable Act") and specifically 47 U.S.C. § 54 1(6), Mediacom cannot operate its cable television business and deliver its programming and content to subscribers unless it first secures a franchise. Moreover, federal law prohibits issuance of exclusive cable franchises so companies such as Mediacom no longer have the right to preclude other cable companies from operating in the franchised territory.

 

 

 

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The City of Des Moines has granted Mediacom a non-exclusive franchise pursuant to its cable television ordinance.2 Under the cable ordinance and the franchise agreement, the City of Des Moines imposes a five percent franchise fee on gross revenues of Mediacom. From January through October 2002, Mediacom paid the City of Des Moines $1,348,682 as the franchise fee for its use of city rights-of-way and for its benefits under the franchise and the ordinance. Where Mediacom uses poles or facilities of other franchised public utilities such as telephone companies or electric utilities, it also pays to them the federally prescribed pole attachment fee. From January through October 2002, Mediacom paid $140,798 to local utility companies for use of pole and utility rights-of-way. This doesn't have any relevance that I can think of, except to say "Look, we're giving you plebians a lot of money, now cut us some slack."

B. The Public Access Channel Requirements.

The Cable Act, pursuant to 47 U.S.C. § 531(A), permits a franchising authority such as the City of Des Moines to impose requirements in a franchise that obligate a cable operator to establish a public access channel and to cablecast public access programming without access fees or content controls. Under the cable ordinance, the city as a local franchising authority in fact has utilized the Cable Act, in part under 47 U.S.C. § 531(a) and (c), to require cable operators in Des Moines to set aside channels for public use. I wonder why he doesn't mention this paragraph of federal law also provides for "government access" and "educational access" channels? They are asking to overturn the whole section.

Additionally, the City of Des Moines has adopted cable ordinance provisions that enforce its cable access channel mandate. Specifically, the ordinance, in subsection 110-

 

2

The existing franchise agreement initially was negotiated by the City of Des Moines with Heritage Cablevision, Inc., dlb/a TCI of Central Iowa and entered into by that company. The cable franchise then was assigned to AT&T Broadband, which in turn transferred the franchise in 2001 to Mediacom when it purchased AT&T Broadband's Iowa cable television operations. The City of Des Moines conditioned its approval of the franchise and each transfer of the franchise based, in part, on the requirement that the cable operator perform pursuant to the terms and provisions of the ordinance and the franchise agreement.

 

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28(b), requires that the franchise grantee "conduct its operations at all times during the life of its franchise in accordance with the provisions of both the franchise and this article and shall be subject to all lawful exercises by the city of its police powers." Further, under subsection 110-31(9) of the ordinance, the franchisee shall "provide, upon request, services, facilities and equipment for production of programming on the public access channel at a cost which allows a grantee to recoup its actual expenses of providing such services, facilities and equipment." The ordinance additionally provides in subsection 110-42 that the franchisee may create service rules with respect to access channels so long as they are not inconsistent with "the grantees' franchise, this article or any other city ordinances and not inconsistent with the laws of the state and the United States."

Under Section 6 of the franchise agreement, the City of Des Moines has mandated that Mediacom "shall provide without charge: (i) one specially-designated non-commercial public access channel available to the public on a first-come, nondiscriminatory basis In addition, in Section 6 of the franchise agreement, the City of Des Moines specified that Mediacom shall place the public access channel on the basic service tier, shall provide certain facilities and equipment, shall establish reasonable rules to allow programmers to use the public access channels and shall make its operating personnel "available to Public Access users from at least 8:00 a.m. until 10:30 p.m. seven days a week in the event of an operational concern." Subsection 3.11(R) states the City of Des Moines may terminate the franchise agreement if the grantee "fails to comply with any material access provision."

 

 

 

 

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Throughout Section 6 of the franchise agreement, the City of Des Moines has imposed programming requirements, distribution requirements, cost and expenses on Mediacom as a condition to the granting and maintenance of the franchise. Thus, Mediacom is required through the ordinance, the franchise agreement, and the power vested in the City of Des Moines through the Cable Act, to provide a public access channel and to carry programming on that channel pursuant to the rules, regulations and laws of the city and of the federal government in partial exchange for its ability to exercise its own First Amendment rights. Those rules and statutes combine to deny Mediacom the opportunity to select or edit programming based on content acceptability. See 47 U.S.C. § 53 1(e). Is Mediacom whining?

Thus, through the Cable Act, the cable ordinance and the franchise agreement, the City of Des Moines specifically mandates that Mediacom provide a public access channel. Accordingly, Mediacom is obligated under the Cable Act, as applied to it through the ordinance and franchise, to dedicate channel capacity and facilities for public access programming and is forced to carry and deliver such programming and content at its expense using its equipment, technology and personnel. This forced speech is in addition to the fees and services extracted by the city under the cable franchise agreement. Yes, Mediacom is whining. Did you know even CHURCHES have to comply with city zoning, building, and other codes?

C. The City's Abdication of Access Channel Control to Mediacom, which is not a Government Body or State Actor.

Unlike many municipalities that impose public access channel requirements, the City of Des Moines has not established a public access board or governing body. Instead, the cable ordinance and the franchise agreement do not specify governing procedures or regulations for public access channels and leave all such decisions to the discretion of the

 

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private cable franchisee, in this instance, Mediacom. As a result, pursuant to the authority granted to it under the ordinance and the franchise agreement, Mediacom has adopted public access programming policies and operating procedures that do not require the city to become involved in any programming problems or decisions.

The Cable Act, the ordinance and the franchise agreement purport to limit Mediacom' s right to control the content and programming distributed on its cable system and specifically require that Mediacom "shall not exercise any editorial control over any public, educational, or governmental use of channel capacity.. _" see 47 U.S.C. § 53 1(e). Ah, so educational and government channels are finally mentioned. Accordingly, Mediacom' s policies in section (1) of Exhibit C set forth the limited provisions regarding control of program content that Mediacom believes it can employ in light of the governmental laws and franchise requirements imposed on it as a condition to obtaining the municipal cable television franchise required to operate under federal law.

Mediacom implemented those rules with the intent of complying with its obligations under the ordinance, the franchise agreement and the Cable Act, despite the fact that those provisions oflaw and government contract impose restraints on its rights to choose when to speak and when not to speak, what content to carry and what content to reject and to otherwise choose which programming it wishes to deliver to its subscribers. Mediacom is aware that the Cable Act states in 47 U.S.C. § 544(d) that if a cable programming, including a public access submission, is in its judgment "obscene, or is in conflict with community standards that it is lewd, lascivious, filthy or indecent or is otherwise unprotected by the Constitution of the United States" that it may reject or revise such programming. Mediacom

 

 

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further understands that if the speech restrictions imposed upon it by the Cable Act are constitutional, Mediacom's right to reject public access programming on content grounds would be severely restricted in ways other speakers and content providers, such as newspapers, broadcasters and web programmers are not.

D. The Dispute with Plaintiff over Unacceptable Program Segments.

Throughout this dispute, Mediacom has consistently advised Plaintiff that it will decline to carry, distribute and cablecast segments of his programming that:

shows graphic photos of aborted fetuses, or

contains videotape shot without permission of identifiable persons showing them entering and leaving the private property of Planned Parenthood of Greater Iowa and that states or implies that these persons are abortionists or are gaining access to the facilities of Planned Parenthood of Greater Iowa for the purpose of obtaining an abortion

When Plaintiff submitted a proposed program with a segment showing photographs of aborted fetuses and still photographs taken from his videotape of persons utilizing the private property of Planned Parenthood, Mediacom declined to cablecast that segment. In its judgment, Mediacom determined that the programming proposed by Plaintiff was unprotected by the Constitution and was otherwise unacceptable to it3

Among the many factors that went into Mediacom's determination that the segments of Plaintiffs prograniming were unprotected by the Constitution is the history of conduct and expression by the Plaintiff. According to news reports and information on Plaintiffs

 

Mediacom did accept Plaintiffs third submission of the same program with the segment modified to block the objectionable photographs and video pictures of identifiable persons. Mediacom' s determinations were viewpoint neutral -- they related to two graphic, indecent and potentially actionable segments of the videotape, not whether the speaker favored or opposed abortion.

 

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web sites (including www.saltshaker.us and www.panews.org), Plaintiff, if not directly, has inferentially advocated and supported violence against persons who perform abortions and intimidation of those who utilize services of clinics such as Planned Parenthood of Greater Iowa. How does one "inferentially advocate" something? He has been a proponent of the Army of God (I have done my best, honest, to educate news reporters about songs like "Onward Christian Soldiers" and "We're In the Lord's Army" and "Am I a Soldier of the Cross" illustrate the fact that "Army of God" has historically referred simply to the Body of Christ, or the True Church) and was a signatory to the position statement supporting the convicted killer of David Gunn, as referred to in Dinwiddie, 76 F.3d at 918, n. 2. Defendant's Exhibit H evidences Plaintiffs speech, incitement and conduct with respect to efforts against abortion, including direct and veiled advocacy to kill doctors who perform abortion and to intimidate women seeking reproductive services from Planned Parenthood.

Mediacom determined that the segment the Plaintiff wished to compel Mediacom to carry was threat speech unprotected under the Constitution and under the Freedom ofAccess to Clinic Entrances Act, 18 U.S.C. § 248. I can't wait to see what reasoning renders the photographs "threat speech"! Mediacom further determined that the segment Plaintiff wished to force it to cablecast further constituted hate speech, unprotected under the Constitution. By what reasoning are appeals not to kill babies "hate speech"? And since when is hate speech "Unprotected under the Constitution"? Mediacom further determined that the segment was false speech unprotected under the Constitution because it could be libelous and could constitute a false light invasion of privacy, for, among other things, labeling identifiable persons as adulterers or abortionists. Was Mediacom paying attention? How could I have more clearly said I was not making that assumption? Mediacom further determined that the segment was unprotected speech under the~ Constitution because it could constitute an intrusion on the seclusion of persons, disclosed private and embarrassing facts and otherwise could invade the privacy of the third persons videotaped without consent (my first brief responds to this fear; interesting that this brief does not even respond to those arguments) and, among other things, portrayed those shown as persons seeking abortions to hide past sins.

 

 

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In addition, Mediacom declined to carry the segment Plaintiff sought to compel it to distribute because Mediacom had a specific and legitimate concern over the safety of individuals who would be portrayed. Mediacom was concerned not only about the safety of those individuals, but its potential liability should any injury in fact occur. Yes, many mothers are in fact beaten and killed over prolife issues -- by prochoice "boyfriends" furious that their "girlfriends" won't get an abortion! What prolifer has advocated or justified harming aborting mothers in any way? The fact that abortionists cry crocodile tears over this unfounded "fear" in order to get media attention, should not be taken as a credible enough threat to remove constitutional rights. Because the ordinance and the franchise agreement of the City of Des Moines require that Mediacom indemnify the city for certain liabilities, Mediacom was concerned about its potential obligations not only to the subjects of Plaintiffs proposed segment but its potential obligations to the city.

Mediacom further determined that Plaintiffs application of the Cable Act, the ordinance and the franchise agreement would force it to program its cable system with content it found unacceptable, potentially harmful, objectionable and potentially obscene. Oh, now it's POTENTIALLY obscene. I wonder how anything can be potentially obscene? Mediacom concluded any compelled carriage of Plaintiffs proposed segment would violate Mediacom' s rights under the First Amendment. Mediacom is aware of the various activities of the Plaintiff, as evidenced throughout his website, his prior public statements and his conduct which previously led to the posting of U.S. Marshals at Planned Parenthood of Greater Iowa clinics in 1994. Oh? And what conduct was that, and who at the time opined that it was conduct which led to the posting? Mediacom further is aware that the Plaintiff had alternate channels of distribution for his proposed programming, including his previous distribution of photographs of persons entering and leaving Planned Parenthood on the website of an associate at www.abortioncams.com and his use of his own websites to distribute audio and video through web-streaming technologies and to display his graphic photographs of aborted fetuses. Thus, Mediacom concluded Plaintiff had available to him many means of

 

 

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distributing pictures, audio and video that would let him "soapbox" without using Mediacom's property and without infringing on Mediacom's speech, press and property rights and its relationships with subscribers, advertisers and the public. Here is the meat of Mediacom's concern. But what advertiser will pull advertising becoause of some political statement made by someone else than Mediacom? In fact, wouldn't most advertisers be made more nervous by censorship than by doing what all other broadcasters do -- allow a free exchange of ideas?

Mediacom has communicated with the City of Des Moines and other municipalities that have granted it franchises in the central Iowa area about its rejection of the segment of Plaintiffs public access programming. The governmental officials have not objected to Mediacom's exercise of its independent rights in connection with this issue and have not advised that Mediacom is in violation of any ordinance, franchise agreement or law. Uh, has Mediacom informed the governments that it is challenging their council meeting broadcasts?

E. Mediacom's Decision to Reject the Segment and its Reasoning for doing

so.

Mediacom believes it was in the best interest of its business, shareholders, employees, cable television subscribers and the public that it exercise the editorial discretion here to reject the program segment submitted by the Plaintiff. As noted above in subpart D, Mediacom determined that Plaintiffs proposed segment was unprotected by the Constitution. On what grounds? Oh yeah, hate speech, privacy, etc. Accordingly, Mediacom took those actions it deemed necessary to protect its interests as well as those of the viewers and the community at large. Additionally, Mediacom determined that if federal statutory law, as applied through the ordinance and the franchise agreement, did not compel Mediacom to dedicate channel capacity for public access programming and did not force Mediacom to disseminate the speech of third parties, or if such law were declared unconstitutional, Mediacom: (a) would exercise its freedoms to choose and deliver only that programming it found acceptable and (b) would consider

 

 

 

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elimination of the public access channel compelled by the Cable Act, the ordinance and the franchise agreement. As the Affidavit of Mediacom's regional vice president stated:

Put simply, Mediacom is an unwilling speaker and absent being compelled to disseminate unacceptable content by statute, ordinance and/or court order, Mediacom would decline to carry Plaintiffs proposed programming and we would review whether we would provide a public access channel once the terms and conditions imposed on us by the federal and local governments were lifted.

Here he says they are only going after public access channel; however elsewhere they want the federal law repealed which provides government and educational access programming along with the public access channel. Perhaps city councils and schools think "Aw, they will still let US be on the air even if the federal law doesn't make them." Wanna bet? That's the gamble.

(Affidavit of S. Purcell, ¶ 38.)

III. ARGUMENT

Plaintiff Cannot Satisfy Any of the Four Datanhase Factors and this

Court Should Refrain From Compelling a Speaker to Disseminate

Content Against Its Will.

To establish an entitlement to preliminary injunctive relief, Plaintiff must demonstrate: (1) his probability of success on the merits; (2) the threat of irreparable harm to him; (3) the balance between Plaintiffs harm if the injunction is denied and the injury that granting the injunction will inflict on other interested parties, including most notably, Mediacom; and (4) whether the issuance of an injunction is in the public interest. See Entergy. Arkansas. Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir. 2000); see also Dataphase Sys.. Inc. v. CL Sys.. Inc., 640 F.2d 109, 114 (8th Cir. 1981). "The burden of establishing the propriety of a preliminary injunction is on the movant." Baker Elec. Co-Op. Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994). An injunction should not issue unless it will serve "a proper remedial purpose." Kohl v. Woodhaven Learning Center, 865 F.2d 930, 934 (8th Cir.). Further, where an injunction is to compel action rather than to prevent activity and would disturb the status quo, a movant has an even heavier burden of showing that the

 

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preliminary injunction standards weigh heavily and compellingly in his favor. See ~g. Sportsmen's Wildlife Defense Funds v. Dept. of Interior, 949 F.Supp. 1510, 1523 (D. Cob. 1996).

The facts and applicable law militate in favor of this Court denying Plaintiffs preliminary injunction request. Here, Plaintiff seeks to change the status quo and to use the Court to force Mediacom to disseminate progranmiing content it has rejected in its editorial discretion. WHO wants to change the status quo? WHO wants to create a right of "editorial discretion" which federal law prohibits? To reach the conclusion that speech should be compelled dictates that this Court determine that the equities weigh heavily in favor of granting Plaintiffs requested preliminary relief, which they do not. In addition, because the Plaintiffs injuries in this case are statutory only, they are in stark contrast to Mediacom' s rights and entry of a preliminary injunction would both decide the case on the merits and forever deny Mediacom its fundamental right to be free from government-compelled speech. Huh? "Statutory only"? MERE lawbreaking by Mediacom moves me? FOREVER? As if they won't appeal? Fundamental right to be free from government-compelled speech, meaning compelled by federal law which Denver thought was the right balance of competing free speech interests? Thus, entry of the requested preliminary injunction would, in fact, itself impose irreparable harm -- on Mediacom. See Part III.B, below. Because of this, the Court should be more apt to deny the preliminary injunctive relief request. See Dataphase, 640 F.2d at 113 (relying on equitable considerations to prevail over the issue on who is more likely to succeed on the merits).

A. Plaintiff is not likely to succeed on the merits of his claims.

"[A]djudication of a motion for a preliminary injunction is not a decision on the merits of the underlying case." Hubbard Feeds v. Animal Feed Supplement. Inc., 182 F.3d 598, 603 (8th Cir. 1999). In the early stage of litigation at the preliminary injunction phase, the speculative nature of the "success on the merits" test "militates against any wooden or

 

 

16

mathematical application of the test. Instead, a court should flexibly weigh the case's particular circumstances to determine whether the balance ofequities so favors the movant that justice requires the court to intervene... ." See United Indus. Corp. v. Cborox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)(emphasis added). Under the "success on the merits" test, while the court does not decide whether a plaintiff will ultimately prevail on the merits see Glenwood Bridge. Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991), the burden of demonstrating that a preliminary injunction is warranted is particularly heavy where, as here, granting the preliminary injunction would give the plaintiff substantially the relief he sought to obtain after a trial on the merits. United Indus. Corp., 140 F.3d at 1179.

While the degree of proof required to establish success on the merits can vary, the burden remains at all times on the plaintiff to demonstrate he is likely to prevail on the merits. Dataphase, 640 F.2d at 113. To do so, the plaintiff must show that there is "support for its position in governing law." Curtis 1000. Inc. v. Youngblade, 878 F.Supp. 1224, 1247 (N.D. Iowa 1995). While this is a lower threshold than actual and ultimate success on the merits, a plaintiff must show that success on the merits is "sufficiently likely to support the kind of relief it requests." Curtis 1000, 878 F.Supp. at 1247. Under applicable statutory and constitutional law, Plaintiff will be unable to show he is likely to prevail on the merits at trial.

 

 

 

 

 

 

 

 

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1. Plaintiff's speech is obscene, indecent and unprotected by the

Constitution and accordingly Mediacom's rejection of it is

permitted by the Cable Act and the cable television franchise.

As noted below, the requirements that Mediacom provide a free public access channel and the mandate that such programming be cablecast without editing or deletion by Mediacom likely cannot withstand constitutional scrutiny. Yet, this Court need not now reach the constitutional questions discussed below because Plaintiff is not otherwise entitled to injunctive relief -- he cannot prevail under the statutory provisions themselves.4

~ "[lit is an elementary canon that American courts are not to 'pass upon a constitutional question. . . if there is also present some other ground upon which the case may be disposed of"' Syracuse Peace Council v. F.C.C., 867 F.2d 654, 657 (D.C. Cir. 1989) citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 34548 (1936) (Brandeis, 1., concurring).

Under the Cable Act, the limited content control exercised by Mediacom in rejecting the segment containing graphic photographs of aborted fetuses and the intrusive videotaping of persons on the Planned Parenthood property in Des Moines was statutorily authorized and permissible.

Under 47 U.S.C. § 531(e), "Subject to section 624(d), a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity" provided under a franchise mandate for such programming "except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity." The application of Section 624(d), which is codified at 47 U.S.C. § 544(d), is a limitation that is extremely important here. That section specifically provides:

Nothing in this title shall be construed as prohibiting a franchising

authority and a cable operator from specifying, in a franchise or

 

renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. (Emphasis added.)

OK, and was this specified by the Des Moines franchise? I read the franchise; I didn't notice it. But I challenge the characterization of my photos as "constitutionally unprotected".

In addition, under 47 U.S.C. § 532(h), which relates to commercial channels on a cable system, the statute likewise provides that content unprotected by the Constitution may be prohibited by a cable operator.5

The various indecency and unprotected speech provisions of the Cable Act were the subject of Supreme Court review in Denver Area Educational Telecommunications Consortium. Inc. v. F.C.C.. 518 U.S. 727 (1996)(hereafter the "Denver Area case"). That case upheld some indecency and editorial control provisions of the Cable Act and found others unconstitutional in plurality opinions of a splintered court. What was clear in the Denver Area case is that the Court saved for another day the constitutionality of the Cable Act requirements for public access channels and its prohibition of editing of public access channel content. See Horton v. City of Houston, 179 F.3d 188,192 (5th Cir. 1999). The unconstitutionality of these sections is the focus of the argument of the following section of this Brief

These provisions have been interpreted to empower cable operators to reject or edit public access submissions that are outside the scope of such programming, or if they are obscene, or contain speech unprotected by the Constitution. See Goldberg v. Cable Systems Corp., 261 F.3d 318, 325 (2d Cir. 2001) (wherein the Court found the cable operator had the right to determine whether content submitted for public access cablecasting "legally belonged" in the public access category); Huh? How is that relevant? Moss v. Cablevision Systems Corp., 22 F.Supp.2d 1, 6 (E.D.N.Y. 1998) (wherein the Court entered a preliminary injunction against the cable operator for violation of 47 U.S.C. § 531(e) because no argument was made by the franchisee "that it contains obscenity, indecency, or nudity.") OK, so Mediacom makes its "argument" that my photos are "obscene", but only by throwing out all case law defining the sexually oriented word! So now we have to explain it farther to Mediacom, that the injunction should be granted because Mediacom made no COHERENT argument that my photos were obscene. Demarest v. AthoL/Orange Community Television. Inc., 188 F.Supp.2d 82, 99 (D. Mass. 2002) (wherein the district court denied preliminary injunctive relief barring a public access channel administrative body from implementing a policy regulating potentially offensive public access programming and requiring prior identification of submissions that have "slang or

 

 

 

19

vulgar language, sexual activities, extreme acts or depictions of violence or depictions of a graphic nature"). This is just astonishing, that the lawyer would take this fact from this case so far out of context as to give it an opposite meaning! The reason the Court denied injunctive relief on this issue, one of the tangental issues of the case, was because the issue was not "ripe" to use Mediacom's word. The plaintiffs hadn't been censored for anything related to this issue; they just saw this language in the contract they had to sign and worried how it might be applied. The Court AGREED the language was PROBABLY unconstitutional, but said it could conceivably be interpreted in a way that was constitutional, so the Court should wait until there were some actual fact situation so the Court could see whether its interpretation and application were indeed unconstitutional! Furthermore, the Court practically invited the Plaintiffs to bring the issue up again at the permanent hearing -- this was only the preliminary hearing! Which implies another reason the Court was waiting was because the preliminary hearing is an emergency hearing to provide quick relief for a problem already occurring or immanent; but there was no problem with this issue which had already occurred, or which appeared imminent. Another point: the "graphic nature" rule is in a context of sexually related rules, implying it could refer to verbal content.

Compare these quotes from this case cited by Mediacom, with Mediacom's characterization of the case: "the plaintiffs have not shown, for purposes of the preliminary injunction, that the Potentially Offensive Provision -- on its face and without the context of an actual controversy -- is not narrowly tailored to promote a compelling interest." "the Supreme Court has cautioned that "[i]nvalidating any rule on the basis of its hypothetical application to situations not before the Court is `strong medicine' to be applied `sparingly and only as a last resort.'" ". If AOTV, as plaintiffs fear, applies the Potentially Offensive Provision in an unconstitutional way, plaintiffs may seek injunctive relief at that time "in a concrete setting." McGuire, 260 F.3d at 47. As noted, such challenges will be reviewed under strict scrutiny. A program featuring political criticism, such as the Think Tank 2000 broadcasts discussed here, seems unlikely to qualify as "potentially offensive."

 In the

Page 42

meantime, plaintiffs retain the ability to prove their case on the merits, without the benefit of an injunction."

 

In the only Eighth Circuit case related to these provisions, Coplin v. Fairfield Public Access Television Committee, 111 F.3d 1395 (8th Cir. 1997), a three-judge panel remanded to this district a case involving content censorship on a public access channel by the Fairfield, Iowa Public Access Television Committee, a body created by government. In Coplin, Judge Bremer had entered summary judgment for the access channel committee on plaintiffs claims for injunctive and declaratory relief. Implicit in that ruling was the fact that public access programming could be barred because it contained statements that were untrue and defamatory. Coplin, 111 F.3 at 1401. Thus, Judge Bremer, in the view of the Court of Appeals, had "concluded that 'Coplin' s statements broadcast on the 'sex survey' show were not constitutionally protected speech and were subject to sanction without violating his constitutional right."' Id.

In reviewing the decision of Judge Bremer, the Court of Appeals ruled only that it lacked a sufficient factual basis to determine if the proposed speech to be cablecast in fact was either a constitutionally prescribable invasion of privacy, if the elements were true, or a constitutionally prescribable defamation, if the statements were false. Id. at 1403. The Court of Appeals did not overturn the content regulation of the Coplin public access board -- therefore, Coplin stands for the proposition that in this circuit a cable access administrative body created by government constitutionally can bar unprotected speech from an access channel. Id.

True, which as you pointed out is no more than the federal law itself provides. But Coplin also gave a four-part test showing what the facts would have to prove to find Coplin's speech "proscrible" for impermissibly invading privacy, and there ain't no way anyone suing me for my photos can meet that test! Furthermore, the Demerest case, just cited, makes quite powerful points about the absurdity of requiring news reporters to get written permission!

 

 

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The Court in Coplin further discussed how under limited circumstances a governmental entity could regulate public disclosure of facts about private individuals. Id. at 1404. Further, the Court indicated that a governmental agency supervising a cable access channel could regulate defamatory speech of a private individual "because of its constitutionally prescribable content." Id. at 1406. When the Court remanded the Coplin case, it did so for the purpose of factfinding as to whether the proposed programming constituted an invasion of privacy or libel. Id. at 1408. Although this is technically true, as a practical matter, Coplin's four part test was a barrier it would be very hard to imagine the court crossing to get to Coplin. It was like saying to the lower court, "We're not going to tell you Coplin is within his rights, but if you want to say he was not, you first have to jump over this mountain." In doing so, the Court did not prohibit outright the editing or rejecting of programming by the governmental body administering the public access channel -- it instead indicated that the governmental body could edit or reject the programming ~f its content was constitutionally unprotected speech because it constituted an invasion of privacy or was defamatory.

Thus, under Coplin and the express language of 47 U.S.C. § 531(e) and 47 U.S.C. § 544(d), public access programming can be rejected as unprotected by the Constitution if its content is libelous or invades the privacy of a third person. Further, if a governmental entity such as the access board in Coplin can engage in such editorial reviews, most certainly a private entity such as Mediacom would have equally extensive if not greater rights to edit or reject public access programming. Here, as in Coplin, Mediacom had the statutory authority to reject or edit obscene and other forms of unprotected speech.

In this case, Mediacom determined that the segments at issue were obscene, indecent, unacceptable and constitutionally prescribable speech. Mediacom did not reject Plaintiffs programming in its entirety -- it accepted his third submission, which blurred the images in

 

 

21

the segment Mediacom earlier had found objectionable. Thus, Plaintiff had the opportunity to disseminate his message and viewpoint, albeit without the graphic images of aborted fetuses and the intimidating videotape of persons at Planned Parenthood.

The editorial decisions made by Mediacom as a private entity and not as a state actor are precisely the type of decisions authorized by 47 U.S.C. § 544(d) and the Court of Appeals in Coplin. See also Portland Cable Access v. Fitzpatrick, No. 95-596, 1995 WL 813 158, 24 Med.L.Rptr. 1214 (D.C. Ore. Nov. 6, 1995) (wherein the district court declined to exercise jurisdiction over determining what was obscene programming, noting that 47 U.S.C. § 544(d) gave the franchising authority and cable operators discretion to determine whether speeclis unprotected by the Constitution).

With respect to the graphic photographs of aborted fetuses, Mediacom reasonably could and did conclude that the segment was indecent and obscene. In Gillett Communications v. Becker, 807 F.Supp. 757 (N.D. Ga. 1992), a case discussed at length below, the Court found that a videotape depicting an actual surgical abortion procedure and containing images of "dismembered fetal body parts, and aborted fetuses" depicted activities and materials "in a manner which is patently offensive according to contemporary community standards." Id. at 763. The Court in Gillett found that as a matter of law such content was indecent.

This Court can make the same assessment of the unedited videotape segment of the "Uncle Ed. Show" rejected by Mediacom in this case. (That tape is submitted as Defendant's Exhibit E, as filed with the Affidavit of Steven Purcell.) By viewing the

 

 

22

videotape originally submitted by Plaintiff, this Court can determine that the segment rejected by Mediacom is indecent, contains nudity and may well be obscene. Thus, this Court can see for itself why Mediacom was statutorily authorized under 47 U.S.C. § 531(e) and 47 U.S.C. § 544(d) to reject Plaintiffs programming as indecent or obscene.6

6 The distinction between indecent programming and obscene programming may be of importance here given the splintered decision in the Denver Area case. Mediacom recognizes in light of the plurality opinions in the Denver Area case, that the right to edit or reject programming which is indecent but not obscene may have been found to be unconstitutional, i.e., obscene content could be rejected but indecent speech could not. However, if the Court reaches that determination, Mediacom's constitutional challenge to the requirement that it provide public access programming and do so without editing must be reached. To avoid reaching that constitutional question, this Court can determine that, in the first instance, Mediacom has the right to decide what is obscene or indecent or this Court can find that the exceptions to 47 U.S.C. § 531(e) apply because the content submitted by Plaintiff contained obscene materials.

So my photos are "indecent, contain nudity and may well be obscene"? Friends said the photos of slain babies satisfied the law because they were "nude", but we were joking. I didn't think the lawyer would actually level that charge! Nude healthy babies are not "nudity" in the courtroom sense; they are the stuff of baby products commercials and Hallmark cards. They are cute. To get all up in a tissy over the nudity of babies invokes the Denver "Hypocrisy Standard". "Indecent"? Mediacom has difficulty distinguishing between the message and the messenger. The Demerest court gave the example of news coverage of mounted police beating peaceful civil rights marchers with nightsticks. Indecent, yes. Revolting to the nation, yes. Were the cameramen the bad guys? Such a thought never occurred to anyone in the 60's, but that was before Mediacom's time.

With respect to the videotape and photographs of persons at Planned Parenthood, Mediacom determined that segment also was unprotected under the Constitution. As in Coplin, that segment would lack constitutional protection if it invaded a person's privacy or defamed them. I marvel that the attorney does not even RESPOND to my analysis in my original brief about the insurmountable 4-part test in Coplin. Similarly, that segment would be unprotected if it constituted threat speech, hate speech, fighting words or was obscene. Threat speech? Will we see alleged facts to support this theory? Hate speech? Will we see alleged law that robs "hate speech" of constitutional protection? "Fighting words"? Will we see a proposed scenario in which my photography would put anyone at risk of IMMIMENT violence other than myself or the cameraman? "Obscene"? Oh, I remember. We're throwing out all case law defining "obscene" as sexually related, and now it means whatever a Mediacom bureaucrat finds personally offensive.

Case analysis on how to define these unprotected categories of speech could be extended to over 100 pages of briefing. Ah, so is this the reason we will not find any precedent or argument for accusing my photos of being "threat speech, hate speech, fighting words or was obscene"? But it is true that it takes much longer to defend yourself when you don't have a case. Such extensive citation to authority here should be unnecessary because the determination of what is unprotected speech should, in the first instance, fall to Mediacom as the cable operator. Thus, limited references to the applicable law with respect to libel, invasion of privacy, threat speech and obscenity should suffice to demonstrate that for purposes of deciding this preliminary injunction motion, Mediacom is likely to prevail under the statutory law upon which Plaintiff based his case. Limited, fine. But we haven't seen any yet.

 

 

 

 

 

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In determining whether speech is unprotected by the Constitution, the recent case of Doe v. Pulaski County Special School Dist., 306 F.3d 616 (8th Cir. 2002) (en banc) provides guidance:

Free speech protections do not extend, however, to certain categories or modes of expression, such as obscenity, defamation, and fighting words. The government is permitted to regulate speech that falls within these categories because the speech is "'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the societal interest in order and morality."'

Id. at 622, citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), quoting Chaplinski v. New Hampshire, 315 U.S. 568, 572 (1942). Threats of violence also fall "within the realm of speech that the government can proscribe without offending the First Amendment." Id citing Watts v. United States, 394 U.S. 705 (1969). OK, so we have a cite now, of a case which makes these words, "obscenity, defamation, and fighting words" as being unprotected. Well, duh. But is there precedent for defining them in such a way that makes them relevant to my case?

It was reasonable for Mediacom to conclude that the objectionable content submitted by Plaintiff fell into various categories of speech unprotected by the Constitution because the rejected programming correctly could be classified as:

Libelous speech and content that constituted an invasion of privacy. Coplin makes clear that public access programming can be edited or rejected if it in fact constitutes an invasion of privacy or is defamatory.

If the lawyer would like a tip on how to make his case in fewer than 100 pages, might I suggest he stop repeating these glib phrases so many times over that only create an EXPECTATION of a coming argument for relevance?

Both of those categories of speech involving private figures generally are unprotected under the Constitution. See New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch. Inc., 418 U.S. 323 (1974); Virgil v. Time. Inc., 527 F.2d 1122 (9th Cir. 1975).

Iowa law permits recovery for defamation and invasions of privacy and preserves causes of action for intrusion into the seclusion of a person, publication of private and embarrassing facts, and casting a person in a false light. See Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289 (Iowa 1979) adopting Restatement (2d) of Torts § 652(a)(2) ~I seq. (1977). Invasion of privacy in Iowa can include the manner and location when videotape is obtained. See Stessman v.

 

24

America Blackhawk Broadcasting Company, 416 N.W.2d 685 (Iowa

1987); see also Haynes v. Alfred A. Knopf. Inc., 8 F.3d 1222 (7th Cir.

1993), cited with approval in Coplin, 111 F.3d at 1404. I should look these up, even though the argument and application of them promised here gives me little reason to.

In this case, Mediacom reasonably could and did conclude that Plaintiff videotaped the persons entering and leaving Planned Parenthood without their permission and that his portrayal of them in the context of identifying abortionists as murderers and clinic patrons as adulterers could be libelous or a false light, an intrusion, or private, embarrassing facts and on invasion of privacy.

He keeps saying "Mediacom reasonably could and did conclude" as if "reasonable conclusion" satisfies the law. No, Denver pointed out the "reasonable" language in the statute was never meant to "expand" the category of censorship allowed, but to allow for one reasonable mistake.

"We concede that the statute's protection against overly broad application is somewhat diminished by the fact that it permits a cable operator to ban programming that the operator "reasonably believes" is patently offensive. Ibid. (emphasis added). But the "reasonable belief" qualifier here, as elsewhere in the law, seems designed not to expand the category at which the law aims, but, rather, to provide a legal excuse, for (at least) one honest mistake, from liability that might otherwise attach." (Denver)

Plaintiffs programming did not disclose the location from which the videotape was shot nor did it indicate whether he had permission to do so. Plaintiffs programming further did not distinguish between the delivery person and the doctor who performs abortions or from the person obtaining contraceptives and the woman seeking an abortion. Plaintiffs content did not indicate whether the facts disclosed already were public or private facts and Mediacom certainly could make the assessment that the disclosures would be highly unreasonable to third persons. Strange line of argument. Relevance to anything?

In light of what was disclosed, and what was not disclosed, Mediacom reasonably concluded that Plaintiffs proposed portrayal of individuals entering and leaving Planned Parenthood could be actionable content for invasion of privacy and for libel. Was the previous paragraph supposed to have been an argument for this conclusion? Or is the lawyer repeating the magic words again without support for their relevance? Mediacom thereby concluded that the content in issue was unprotected by the Constitution of the United States. That determination, in the first instance, certainly is unassailable. Moreover, under the facts of this case and the record that would need to be developed at trial, Plaintiff will likely be unable to refute the inferences or answer the open questions raised by the objectionable segment. What inferences? What questions?

Accordingly, just as in Coplin and in the cases declaring such libelous speech unprotected, Plaintiffs proposed cablecast of persons entering and leaving Planned Parenthood is not protected speech. STILL no argument! STILL just repetitions of words whose relevance is unsupported! Coupled with his avowed purpose and his prior actions, Mediacom reasonably concluded that Plaintiffs attempts to cablecast his speech were part of an overall attempt to intimidate and harm persons through false speech or speech which cast them in a false light or disclosed private embarrassing facts. More words without support. Which, of my words or photos, is alleged to be false? Thus, Mediacom was justified in determining Plaintiffs speech was unprotected by the Constitution.

Threat speech. In the Eighth Circuit threat speech is measured "from the viewpoint of a reasonable recipient." Pulaski County Special

 

25

School Dist., 306 F.3d at 622. In determining whether speech can constitute a true threat, relevant facts must be reviewed to determine "whether the recipient of the alleged threat could reasonably conclude that it expresses 'a determination or intent to injure presently or in the future."' U.S. v. Dinwiddie, 76 F.3d at 925 (quoting Martin v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982)).

In Dinwiddie, a nonexhaustive list of factors relevant to how a reasonable recipient would view the purported threat was set forth. Those factors include the reaction of those who heard the alleged threat, whether the threat was conditional, whether the person who made the alleged threat communicated it directly to the object of the threat, whether the speaker had a history of making threats against the person purportedly threatened and whether the recipient had a reason to believe that the speaker had a propensity to engage in violence. Id. at

925.

The Dinwiddie factors are important here and the most compelling of them relates to the Plaintiffs long association with Dinwiddie herself and his prior conduct. Plaintiffs website indicates, among other things, that he and Dinwiddie are colleagues who have shared many common expeinces in their anti -abortion efforts. According to his website, Plaintiff even assisted Dinwiddie by co-drafting her appeal brief when she sought certiorari to the United States Supreme Court from the Eighth Circuit Court of Appeals decision cited above. See www.saltshaker.us\prolife.html. On that web site, Plaintiff wrote about "The Anti-Roe Brief that scared the Justice Department... written by Regina Dinwiddie and Uncle Ed. to appeal the lower court FACE suit against her for Biblical warnings, which the court construed as personal threats."

A review of the facts in Dinwiddie shows her conduct was on a parallel course with that of Plaintiff, as described in his own writings and video programs and now demonstrated by the videotaping at Planned Parenthood. His prior conduct, including his Army of God publications, his joinder in the petition defending Michael Griffin, who was convicted of killing Dr. David Gunn, and his other proclamations and declarations, like Ms. Dinwiddie's, each in its singular instance may be protected under the First Amendment, "but they may also be relevant to show that other statements could reasonably be understood as threats of physical harm." Id at 918 n. 2.

I need to respond, probably, with arguments from my Dinwiddie brief. Sure, they MAY be relevant, but surely relevance is not proved by merely saying something MAY be relevant! Surely some argument is necessary to show which facts in the record make some rational case in that direction!

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The context of Plaintiffs videotape showing persons entering and leaving Planned Parenthood when coupled with Plaintiffs conduct, speech, and avowed purpose to deter persons from obtaining services at Planned Parenthood, (My "avowed [stated] purpose" is "to deter"? Well, perhaps by persuasion. Is there a law against persuasion? Have I ever stated I hope to "deter" abortion by OTHER than persuasion, or by changing the law?) show how Plaintiffs speech violates the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. More to the point, however, as in Dinwiddie, United States v. Hart, 212 F.3d 1067 (8th Cir. 2000) cert denied 531 U.S. 1114 (2002) and Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (petition for cert filed 71 USCW 3292 (October 2, 2002) (No. 02-563), Plaintiffs conduct of videotaping persons, especially women, entering and leaving Planned Parenthood and his efforts to utilize Mediacom's facilities to publicize that content reasonably could be determined to be unprotected speech, either as hate speech or threat speech barred in part under the Freedom of Access to Clinic Entrances Act. More words without argument.

In this preliminary injunction case, the question is not whether Plaintiffs conduct is capable of supporting the conviction for violation of the Freedom of Access to Clinic Entrances Act or is capable of being enjoined as hate speech -- the operative question here is whether it was reasonable for Mediacom to conclude that Plaintiffs speech constituted unprotected speech Mediacom made that determination. That judgment had a reasonable basis in fact and in law and Plaintiff is not likely to succeed on the merits of his attempt to have that determination overturned as unlawful under the Cable Act and Coplin. Here Mediacom more clearly states its argument is not whether the law actually permits this censorship, but whether Mediacom has a "reasonable basis" for thinking it does. Mediacom is actually arguing that there may well be a gap between Mediacom's understanding of the law, and the Court's balancing of the competing free speech rights of defendant and plaintiff. But as I said, Denver doesn't think "reasonably believes" is a license to expand the grounds of censorship beyond what the court believes. If it is determined that there is a wide gap between Mediacom's "reasonable belief" and the court's balancing of the competing free speech interests of plaintiff and defendant, the law preserves to the court the authority to correct Mediacom's understanding of the law from this point forward.

Obscene and indecent speech. The classic definition for obscenity was set forth in Miller v. California, 413 U.S. 15 (1973) and relies on prevailing local standards. While Mediacom concedes that there is a difference under the Constitution between indecent speech and that deemed obscene, see Sable Communications v. FCC, 492 U.S. 115 (1989), the question in a case such as this then is who in the first instance decides whether something is obscene.

Mediacom believes that both the content and purpose of Plaintiffs proposed programming lend support to the conclusion it is obscene, although Mediacom will stipulate that the "obscenity" is likely more in a common sense manner rather than under a standard requiring that obscenity be limited to sexual material appealing only to a prurient interest. (Further, while the Cable Act on its face gives Mediacom the ability to reject indecent speech, the Denver Area case seemingly took away that authority.)

Ah, finally some acknowledgement of the difference between Mediacom's definition of "obscenity" and the court's! Butchered grammar notwithstanding! "'Obscenity' is likely more in a common sense manner" should probably be translated, its grammar being a bit uncertain, "Mediacom prefers to define 'obscenity' the way common sense might, in some contexts, define it, rather than the way Courts and laws define it."

 

 

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Thus, Mediacom submits that if the cable operator is the arbiter of obscenity and indecency and is permitted to make a conclusion along those lines, it has done so. If, on the other hand, the Court is the arbiter of obscenity, using prevailing community standards, Mediacom urges that Plaintiff bears a burden of demonstrating that this speech does not fall into that unprotected category. Plaintiff has not satisfied that evidentiary burden at this preliminary injunction stage.

Mediacom at least acknowledges the Court might have some authority over the bounds of obscenity, and would permit the Court to consider "prevailing community standards", though not appeal to "prurient interests". I, too, will stipulate: that if the federal law's category of "obscenity" may now be construed to mean "whatever 51% of the community hates", then photos of slain babies are now "obscene", along with Polk County Republicans, telemarketers, and TV commercials.

In sum, Plaintiffs videotape "stalking" of visitors to the Planned Parenthood offices and his graphic display of photographs of aborted fetuses, under the facts of this case and in light of Plaintiffs conduct and intent, constitute content unprotected by the Constitution. Thus, Mediacom had the right to reject the segments containing unprotected speech consistent with the Cable Act and Plaintiff is not likely to succeed on the merits of his claim under 47 U.S.C. § 531(e). This Court should decide that Mediacom was well within its rights under the statute to reject or edit the public access channel submissions because those segments are obscene or contain speech unprotected by the Constitution.

"Stalking" has been well defined in many laws, and standing with a camera in a fixed location, filming unidentified people walking in and out of another fixed location, does not qualify! This is more "hyperbole".

2. The Cable Act and franchise provisions compelling Mediacom to provide a public access channel and to refrain from content decisions regarding access programming are unconstitutional.

a. The case presents the yet undecided question on the constitutionality of the Cable Act's public access channel requirement and no-censorship provision.

While there has been a variety of litigation involving the Cable Act and leased and public access programming in general7, the Turner, Denver Area and other cases have left open the question of constitutionality of the Cable Act's public access channel requirement

 

 

See United States v. Midwest Video Corp., 440 U.S. 689 (1979); Los Angelesv. Preferred Communications. Inc., 476 U.S. 488 (1986); Turner Broadcasting System. Inc.v. FCC, 512 U.S. 622 (1994); Denver Area Educational Telecom. Consortium. Inc. v. FCC, 518 U.S. 727 (1996).

 

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(the "P" in PEG) and the corresponding restriction on a cable operator's editorial control.

Here the focus is on public access, not educational or government access. The ONLY support from Denver for canceling public access, however came from Justices Scalia, Thomas, and Rehnquist, whose arguments equally apply to Mediacom's right, as a private business, to dump the educational and government access stations. See Horton v. City of Houston, 179 F.3d 188, 192 (5th Cir. 199) (noting unsettled question of constitutionality of public access requirement); Denver Area 518 U.S. at 821 n.6 (Thomas, 1., dissenting) (noting concerns regarding constitutionality of public access requirement).

Indeed, the undersigned are aware of no reported decision wherein a court considered the issue presented here- whether a government mandate that on one hand forces cable operators such as Mediacom to set aside valuable bandwidth for public access programming and on the other takes away that same operator's ability to edit or otherwise be able to exercise some discretion over the content they are being compelled to carry runs afoul of the First Amendment. Huh? Virtually EVERY cable censorship case took up this issue, in the course of establishing jurisdiction. Which defendant, of the dozens, failed to bring up this issue? The unsettled conflict among various forms of communication and the changes in technology make the issue both unsettled and ripe for determination. Cf Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding agency regulation requiring broadcasters to provide fair and balanced coverage, a regulation since repealed by the FCC and whose repeal was upheld because it chilled speech, see Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989)); Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) (invalidating editorial right of reply statute compelling newspapers to print candidate statements of reply to personal attacks).

That these provisions have not been challenged may be due, in part, to the unusual factual circumstances here. Unlike usual set-asides for public access channels in other conMnunities, Mediacom has been vested with full responsibility (and any resulting liability) for managing its public access channels. Whereas ordinarily public access progranmiing is

29

overseen to a limited extent by a community or governmental board, here Mediacom not only provides facilities, personnel and bandwidth to public access programmers such as Plaintiff, but it also is forced to be the arbiter of whether particular programming is appropriate for cablecast. FORCED? You mean to tell me Mediacom could not, tomorrow, VOLUNTARILY delegate its censoring to a nonprofit group? Despite being given this responsibility by the City of Des Moines, however, the Cable Act divests Mediacom of any real power to exercise editorial discretion over the speech it is compelled to carry. As the Cable act does, of course, for everybody else.

There can be no question that Mediacom's First Amendment rights are implicated by the Cable Act and the specific application of § § 531(b) and (e) in this case. It is well-settled, however, that "Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have not elsewhere required." Turner Broadcasting System. Inc.v. FCC, 512 U.S. 622, 740 (1994) (numerous citations omitted).

Specifically in the context of government-compelled speech, the Supreme Court recently reiterated in a case involving mandatory "check offs" and the use of compelled contributions to fund speech the "donor" found objectionable:

Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views, []or from compelling certain individuals to pay subsidies for speech to which they object.

Well, sure, I as an individual shouldn't be forced to pay, for example, for the salary of a preacher at another church. But I have to pay when the city paves my street for others to drive across. I have to pay a state sales tax so politicians can gripe about how little of it they have to spend. But if I, as an individual, were entrusted with control over the ability of thousands of others to express themselves, more impartiality might be expected of me. Just as it would be unreasonable of me to refuse to pay for paving my frontage, and for my veto to prevail over it being paved, so that the whole rest of the city, traversing my street, would travel a nice clean paved road until it came to my home where they would get stuck in the mud.

United States v. United Foods. Inc., 533 U.S. ~'05, 410 (2001), citing Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990); see also Doe v. Pulaski Co. Special Sch. Dist.,

 

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306 F.3d 61, 62 1-22 (8th Cir. 2002) ("As a general matter, the First Amendment prohibits governmental actors from directing what persons may see, read, speak, or hear."), citing Ashcroft v. The Free Speech Coalition, 535 U.S. 234, 12 S.Ct 1389, 1399 (2002).

There can be no dispute that the government-compelled carriage of Plaintiffs programming, including the portions of which it found objectionable, comes at the detriment of Mediacom's speech and liberty. Mediacom's decision to carry certain programming, or not carry certain programming, is a form of speech protected by the First Amendment. See, ~±g±, Denver Area, 518 U.S. at 737 ("the editorial function itself is an aspect of 'speech"'), citing Turner, 512 U.S. at 636;Arkansas Educ. Telev. Com'n v. Forbes, 523 U.S. 666, 674 (1998) (noting "editorial discretion in the selection and presentation" of programming is "speech activity" and "Although programming decision often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts.") (citation omitted); Century Federal. Inc. v. City of Palo Alto, 648 F.Supp. 1465 (N.D. Cal. 1986) (holding cable television is entitled to greater degree of First Amendment protection than traditional broadcast media). Further, any regulation that promotes one speaker to the detriment of the other presumptively invites judicial scrutiny. See Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) ("the concept that the govermnent can restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."). Helpful argument, since Mediacom would have the government-created PEG channels subject to Mediacom's personal pro-abortion prejudices, which would "restrict the speech of some elements of our society in order to enhance the relative voice of others".

Thus, the initial inquiry is whether the regulations at issue are content-related, or content-neutral. Because the combined effect of 47 U.S.C. § 53 1(b), § 53 1(e), and the City

 

 

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of Des Moines franchise agreement is to compel Mediacom to speak, the regulations in issue are content related. Huh? How is a law that permits bartering 3 channels for public rights of way "content related"? Mediacom is fighting for the right of content-related censorship, and to make its argument it says forcing it to give away any airtime at all is "content related" law? The cites that follow simply do not even address such a theory, much less support it. S ee, ~±g, Turner, 512 U.S. at 675 (O'Conner, J. concurring in part and dissenting in part); Denver Area, 518 U.S. at 821 (Thomas, J. dissenting) ("There is no getting around the fact that leased and public access are a type of forced speech.... The position adopted by the Court in Turner ineluctably leads to the conclusion that the federal access requirements are subject to some form of heightened scrutiny.")

Accordingly, "A content-based regulation is presumptively invalid." Thorburn v.Austin, 231 F.3d 1114, 1117 (8th Cir. 2000); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available. Sable Communications v. FCC, 492 U.S. 115 (1989). Moreover, they would be material here only if the public access channel of Mediacom legitimately could be viewed as a public forum.9

Even if it is determined the § 531(e) is a content-neutral restriction of Mediacom's speech, it still must be determined whether it is "narrowly tailored to serve a significant government interest and whether it preserves ample alternative channels of communication." Thorburn v. Austin, 231 F.3d 1114, 1119 (8th Cir. 2000).

It remains an unsettled question whether public access channels constitutionally can be characterized as public fora. In Coplin, the Eighth Circuit noted that the Denver Area plurality recognized that the question should be deferred until the modern communications environment became better defined. The arguments against finding a public access channel is a public forum noted in the Denver Area and Coplin cases, as well as the changing nature of the cable industry since the 1996 Denver Area decision, call into doubt whether government compelled and coerced public access could today fit within the traditional public forum analysis. Coplin, 111 F.3d at 1402 n.4. Nonetheless, it is beyond dispute that Mediacom did not willingly dedicate a portion of its bandwidth for free and unbridled use by third parties and thus, unlike the company town in Marsh v. Alabama, 326 U.S. 501 (1946), its cable access channel is not provided voluntarily and with the purpose of creating a public forum. Accordingly, Mediacom should not be required, particularly as a private actor, to show a compelling interest to restrict the speech of public access progratmners instead the government must be required to prove a compelling state interest supports why Mediacom must dedicate its private bandwidth, and forego its constitutional free speech and press rights, for public use. Even if the public access channel could be deemed a non-traditional or limited public forum, the barring of obscene and indecent speech as well as hate speech, libelous speech or content constituting an invasion of privacy certainly would be permitted as the indiscriminate cablecasting of such unprotected speech would be inherently inconsistent with the operation and purpose of the channel. Cf. Widmar v. Vincent, 454 u.s.

263 (1981).

 

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b. With changes in technology and communication there is no governmental interest supporting treatment of a cable operator as a disfavored speaker and Mediacom should be afforded full speech and press rights under the Constitution, including the right to reject or edit programming.

A threshold issue under a strict scrutiny or even under an intermediate scrutiny analysis is whether there is a compelling or significant government interest in the government's compulsion of Mediacom to set aside bandwidth for public access programming and then restrict its speech by divesting it of any editorial control over the use of that bandwidth. The proffered governmental interest behind the Cable Act has been discussed by courts considering challenges to different provisions, and in 2002 such discussions show they were a product of a now-antiquated view of the telecommunications industry. In Turner the Supreme Court noted that regulations of speech in the cable industry "are justified by special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television" Turner, 512 U.S at 661. The Court specifically cataloged the government interests as (1) preserving the benefits of free, over-the-air local broadcast television (with respect to must-carry obligations); (2) promoting the widespread dissemination of information from a multiplicity of sources; and (3) promoting fair competition in the market for television programming. Id. at 662.

At the time of enactment of these regulations, however, cable television was an emerging technology and for many households offered the only means by which a

33

programmer, public access or otherwise, could deliver its message to viewers. At that time cable franchises also were exclusive, such that only one cable operator generally served a home. Today, however, the telecommunications industry has changed, as there are numerous outlets by which a programmer may distribute its programming and a viewer may receive it, be it by direct-broadcast satellite (DBS), (more costly than local programming) digital over-the-air broadcast television, (hasn't come to Des Moines yet) digital multicasting, (not in Des Moines yet) high definition television, (this isn't even a category of distribution options; it's like throwing in "mashed potatoes" in a list of NFL colors) or audio and video internet streaming. (Reaches a far more sophisticated, far more patient crowd. Visual images there, as well as sound, are of far poorer quality; the appeal of the internet is primarily written words, with poor video and sound for an occasional diversion.) Further, the ubiquity of the internet, VCR's, videotapes, digital-versatile discs (DVD's) Even the corporate giants cannot market videos except they be broadcast first to create a market among those who want to see it again. Only on the smallest scales are videos marketed which have never aired before (or been in movie theatres). and video-on-demand also present the viewer with a variety of options for accessing varied types of programming and viewpoints. Indeed, Plaintiff himself utilizes these alternative methods, by selling videotapes directly from his website (Haven't sold one yet, but if he's buying I'll sell it even if it hurts my case) and by offering streaming video and audio. See Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1443 (8th Cir. 1993) (Arnold, C.J. concurring) (noting the changing landscape of the telecommunications industry).

The Court in the Denver Area case acknowledges that the governmental interest in regulating the telecommunications industry is fluid, and notes the continued emergence of technology and its resulting reluctance during the industry's relative infancy to apply a rigid standard. See Denver Area, 518 U.S. at 741-42 ("aware as we are of the changes taking place in the law, the technology, and the industrial structure related to telecommunications,~, c±g±, Telecommunications Act of 1996, 110 Stat. 56; S.Rep. No. 104-23 (1995); H.R.Rep. No. 104-204 (1995), we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now. See Columbia Broadcasting Systems Democratic Nat. Committee, 412 U.S. 102, 93 S.Ct. 2000, at 2086 (1973) ("The problems of regulation are

34

rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence"); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039 (1978) ("We have long recognized that each medium of expression presents special First Amendment problems."))

That there no longer is a governmental interest in preserving access to household viewers by compelling cable operators to set aside public access channels is further underscored by the plain text of the Cable Act itself. Congress' decision to not make the provision of public access channels mandatory, but instead leaving it to localities to determine whether they should be provided, is strong indicia of the relative importance of mandated public access provisions vis-a- vis a cable operator's First Amendment rights. Compare 47 U.S.C. § 531(a) ("A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent provided in this section." with 47 U.S.C. § 534(a) ("Each cable operator shall carry, on the cable system of that operator, the signals of local commercial television stations and qualified low power stations as provided by this section. Carriage of additional broadcast television signals on such system shall be at the discretion of such operator, subject to section 325(b) of this title.") (emphasis added).

Because cable no longer is the last, and only mile, to a viewer's household, but instead finds itself in competition with technologies new and old, and even overbuilding cable operators under the non-exclusive franchise scheme now contemplated by the Cable

 

 

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(Page 36 was missed by the scanner)

pictures. One could conceive a regulation that empowers a locality to determine whether it should require a set-aside for public access channels, while eliminating the restrictions found in § 531(e). Thus, although cable operators may still agree to devote bandwidth to public access programming, they would be able to edit and control its content, with the recognition that given the many alternative means of reaching viewers -- low power broadcast, videotape distribution, internet streaming, and so on -- a public access programmer such as Plaintiff will find alternative means to be heard.

d. Under traditional First Amendment law and under the developing line of cases barring government-compelled speech, the Cable Act's public access channel requirement and editorial control prohibition are unconstitutional on their face and as applied to Mediacom through the city's cable franchise agreement.

Mediacom undeniably is being forced to speak by Plaintiff and by the government as a result of the application of §~ 531(b) and (e) in this case. Courts have long been skeptical of compelled access to carriage, as "Government-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate."' Tell me by what legal theory would allowing Mediacom to engage in content-based censorship increase the vigor and variety of public debate in Des Moines? The second cite following shows how forcing all individuals to say the same thing of course dampens the vigor and limits the variety of public debate; but here we are talking about forcing one gatekeeper to the expression of thousands of others to carry information without content-based restrictions. Tornillo 418 U.S. at 284, citing New York Times, 376 U.S. at 279. In addition, "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wolley v. Maynard, 430 U.S. 705, 713 (1977) (holding state could not compel motorist to display "live free or die" on license plates); Livestock Marketing Ass'n v. USDA., 207 F.Supp.2d 992, 1002 (D.S.D. 2002) (holding compelled "checkoff' for beef industry is unconstitutional in violation of the First Amendment because it requires plaintiffs to pay, in part, for speech to which they object.)

 

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The Supreme Court long ago recognized the problem inherent when the government attempts to cure a scarcity of access at the expense of a carrier's speech rights when it noted that "at each point the implementation of a remedy [to scarcity] such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years." Tornillo, 418 U.S. at 254.

Plaintiff has no constitutional right to cable access, and the access granted by Congress by the Cable Act undeniably has come at the expense of Mediacom's speech rights. See Denver Area 5128 U.S. at 824 (Thomas, J. dissenting) ("Viewing the federal access requirements as a whole, it is the cable operator, not the access programmer, whose speech rights have been infringed."). There simply is no justification for infringing upon a cable operator's First Amendment rights, in order to prop up the rights of a speaker with numerous other available outlets for expression.

Here, and unlike cases wherein a cable operator or programming board has imposed a blanket regulation or policy in a veiled attempt to discourage the airing of particular viewpoints, Mediacom has plainly stated that in its exercise of discretion delegated to it by the City of Des Moines and protected by the First Amendment, it has determined that segments of the programming submitted by Plaintiff were unacceptable for cablecast because, in part, it was speech unprotected by the Constitution. Mediacom did not initiate a declaratory relief action to cancel the "The Uncle Ed. Show" or to silence Plaintiff, as

 

 

38

evinced by its willingness to cablecast the programming at issue with only the offensive video and pictures blurred. Facing the prospect of a court-ordered directive to cablecast a segment it finds objectionable, however, has dictated that Mediacom challenge patently unsupportable incursions on its freedom to speak -- or more importantly here -- its freedom not to speak. The Constitution, logic, and history together dictate that Mediacom simply should not be compelled to speak when it does not wish to.

B. Plaintiff has not suffered real, immediate, and irreparable injury to any

constitutional rights.

In federal courts the true basis of injunctive relief has always been irreparable harm and the inadequacies of legal remedies. See Beacon Theatres. Inc. v. Westover, 359 U.S. 500, 506-07 (1959); Bandag. Inc. v. Jack's Tire & Oil. Inc., 190 F.3d 924, 926 (8th Cir.

1999). To satisfy the Dataphase "irreparable harm" factor, Plaintiff must demonstrate a "sufficient threat of irreparable harm." Adam-Mellang v. Apartment Search. Inc., 96 F.3d 297, 299 (8th Cir. 1996). Plaintiff is unable to do so where, as here, his claim to a right or interest is based on a statute and that enactment, if enforced, would violate Mediacom's constitutional rights. Moreover, because Mediacom has accepted a revised program from Plaintiff that conveys his same message without the unacceptable speech, Plaintiff has not suffered and will not suffer irreparable harm. See generally, Glendora v. Hostetler, 916 F.Supp. 1339 (S.D.N.Y. 1996) (wherein a public access programmer was denied preliminary injunction relief, in part because her Cable Act claim did not persuade the court "that constitutional rights are implicated" and therefore she did not show she would suffer irreparable harm.) Plaintiffs content, message and viewpoint have been cablecast -- his

 

39

incremental harm, if any, suffered as a result of Mediacom's deletion of the unprotected speech in the objectionable segment is neither material nor irreparable. Lastly, because Plaintiff has available to him alternate means of distributing his message and has utilized those means to deliver his audio and video content, he has not suffered irreparable harm. Plaintiff has other ways of communicating his message and clearly knows how to use them.

This is not a case where Plaintiffs First Amendment interests have been harmed by a state actor -- to the contrary it is a case where the defendant's conduct itself is constitutionally protected. Cf. Missouri Republican Party v. Lamb, 31 F.Supp.2d 1161, 1164 (E.D. Mo. 1999). While it is clear that within the context of the "irreparable injury" prong of the Dataphase test, the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Iowa Right to Life v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) quoting Elrod v. Burns, 427 U.S. 347, 373 (1976),1o here it is Mediacom, not Plaintiff, whose rights are grounded by the First Amendment rather than legislative enactments.

Further, injunctive relief is particularly inappropriate where, as here, Plaintiff has adequate alternative means to redress his grievances and has used them. His program and viewpoints have been cablecast. As a general rule, courts will not grant preliminary injunctive relief where the Plaintiff has an adequate legal remedy. See Frank B. Hall & Co. v. Alexander & Alexander. Inc., 974 F.2d 1020, 1025 (8th Cir. 1992). In this case, while

 

 

10 Although Mediacom first advised Plaintiff in August 2002 that segments showing aborted fetuses and identifiable women would not be aired, Plaintiff did not request cablecasting of the objectionable segments until November 13, 2002. His own delay shows his harm is not immediate and irreparable.

Here Mediacom overstates the significance of "ripeness", meaning censorship doesn't count until a show is actually canceled. I was told flatly in August these two categories would not be aired. Case law says IMMINENT censorship is grounds for an injunction. This statement refuses to count my many communications with Steve Purcell, and even a letter to all Mediacom executives listed on their website, detailing the issues of this case and urging them to work them out without forcing me to take them to court, as a "request". I didn't think it necessary to enter these communications into evidence, because they did not seem relevant. And they still don't: Mediacom submits no evidence that I have NOT previously requested, but it is obvious that Mediacom understands it was my intention to air those photos in August, or they would not be on record telling the world they would not air them. (See submitted tape of newscasts)

 

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Plaintiff may not have another statutory remedy under the Cable Act (but query if his remedy in all instances is with the Des Moines City Counsel, not this Court), he has adequate and ample alternative means of communicating his message. This Court should find that Plaintiff has not suffered irreparable injury and thus, preliminary injunctive relief is not warranted.

C. Preliminary injunctive relief would cause substantial injury to

Mediacom's constitutional rights

The Dataphase "balance of harms" test focuses on the harms that the denial of injunctive relief would cause to Plaintiff and that the granting of injunctive relief would cause to other parties and to the public as a whole. See Dataphase, 640 F.2d at 372. The foregoing discussion reveals that the denial of preliminary injunctive relief will imperil Mediacom's constitutional rights, causing it significant irreparable injury. This militates in favor of the Court denying Plaintiffs requested relief. Like the "irreparable harm" test, the "balance of harms" test also weighs in favor of the Mediacom.

Moreover, the denial of the requested injunctive relief enhances the public welfare, rather than harming it. Here, the granting of preliminary injunctive relief would allow Plaintiff to usurp the editorial rights of Mediacom and would require Mediacom to disseminate objectionable segments of videotape to a public that may in fact find it indecent, harmful to children and unacceptable. This is the strongest argument yet, I feel. Ask the public whether my photos are "indecent", rather than courts or laws, and they may vote me down. But even the public understands the value of free speech regarding minority political and religious views. The public understands that when individual public officials, bureaucrats, or even private businesses are given the power to throttle political or religious speech, the danger is that the most important Truths may be the first to be throttled. As a wise man once said, "I personally find Tom Dashle patently offensive, but they keep putting him in the news." While the Eighth Circuit has concluded that when First Amendment values are at stake, then the "balance of harms" prong of the Dataphase analysis clearly supports the issuance of a preliminary injunction, in this case the analysis must be turned on its head because "the potential harm to independent expression" is aggravated by the issuance of the requested injunctive relief. As stated repeatedly,

 

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Mediacom is not the government and the only constitutional issues in question are, in the words of Justice Thomas in the Denver Area case, "how, and to what extent, the First Amendment protects cable operators, programming, and viewers from state and federal regulation." Denver Area, 518 U.S. at 812 (Thomas, J. dissenting). Notice how Mediacom only quotes from the dissent.

This case reflects public interest concerns, and media concerns, that are comparable to those raised in a 1992 case involving similar "no editing" laws and FCC regulations pertaining to over-the-air broadcasters' duty to accept political advertising of federal candidates. In Gillett Communications v. Becker, 807 F.Supp 757 (N.D. Ga. 1992), a broadcaster faced a Hobson' s choice similar to that presented by Plaintiff to Mediacom here. There, Becker, a candidate for Congress, bought time to show a campaign program that included a segment depicting a surgical abortion and also segments showing dismembered fetal body parts and photographs of aborted fetuses. The program was set to air on a Sunday afternoon and under FCC rules, the television station could not reject or edit the content even though it deemed it indecent and unacceptable for broadcast to children. Id. at 762.

Despite the mandate of Congress, the district court granted the injunction request of the television station allowing it to reject the candidate's programming for the time of day purchased and allowing it to shift the program to late night, where it would less likely be seen by children. Id. at 765. The court found the videotape was patently offensive according to contemporary community standards. Id. at 763. In entering the requested injunctive relief, and thereby negating the Congressionally-mandated carriage of the content the station

 

 

 

 

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found unacceptable, the court found "WAGA-TV has proven that its own injury outweighs the injury to Defendant Becker and the Becker campaign." Id. at 764.

On the other hand, the FCC said: In the Matter of Petition for Declaratory Ruling Concerning Section 312(a)(7) of the Communications Act, 9 FCC Rcd 7638; 1994 FCC LEXIS 5867; 76 Rad. Reg. 2d (P & F) 1062 (1994)

Broadcast of political advertisement containing the graphic depictions of aborted fetuses are not indecent... [M]any viewers find the images of aborted fetuses deeply disturbing and patently offensive, [but] that is not the test for indecency....We remain of this view notwithstanding that a district court in Georgia concluded that a videotape depicting "the actual surgical procedure for abortion" was indecent. Gillett Communications v. Becker, 807 F. Supp. 757, 763 (N.D. Ga. 1992), appeal dismissed mem., 5 F.3d 1500 (11th Cir. 1993). In ourview, however, the district court erroneously applied the indecency standard in that case....

Even if the material at issue in the Gastfreund ruling could be considered indecent under some meaning of that term, the images cannot be divorced from the context of a political campaign. ... The advertisement in Gastfreund that prompted this inquiry was presented in the context of a political campaign and it is beyond dispute that the issue of abortion is an important question in American politics. Accordingly, the context in which the advertisement at issue was presented provides further support for our conclusion that it was not indecent.

http://jcomm.uoregon.edu/~tgleason/j385/Indecent_j385.html#A1

 

 

Here, both the constitutional deprivation an injunction would impose on Mediacom as well as the damage that would be caused to it and its viewers if Plaintiffs unedited content must be cablecast show, that like in Gillett, the harms Mediacom will suffer by the granting of injunctive relief are more significant than any potential injury to the statutory rights of Plaintiff. Here, harm to the First Amendment rights of Mediacom must be balanced against injury to mere statutory rights of Plaintiff-- in this case the Dataphase factor of reviewing the balance of harms tips to Mediacom by a wide margin, making preliminary injunctive relief an improper remedy.

One other factor enters into the assessment of this balancing of harms -- Mediacom has voluntarily taken remedial action to eliminate many of Plaintiffs complaints and has cablecast all of his proffered programming except for the two segments it found were constitutionally unprotected speech. Where the non-movant has voluntarily taken remedial measures that eliminated or reduced the harm to a plaintiff, such action tips the balance of harms analysis in favor of the non-movant. See Heather K. v. City of Mallard, 887 F.Supp. 1249, 1260 (N.D. Iowa 1995).

D. Entry of a preliminary injunction compelling Mediacom to disseminate

Plaintiff's proposed programming would be against the public interest.

The "public interest" prong of the Dataphase analysis has prompted some courts to "indulge in broad observations about conduct that is generally recognizable as costly or injurious." Branstad v. Glickman, 118 F.Supp.2d 925, 943 (N.D. Iowa 2000). The better

 

43

analysis however would turn to more "concrete considerations," such as the determination of whether the Plaintiffs interests and the public's interest in the litigation are in accord. The movant's interest is in accord with the public interest where there exists a general alignment of the movant' s interest with the policies and purposes underlying a statute or constitutional rule. See Branstad, 118 F.Supp.2d at 943; Heather K., 887 F.Supp. at 1260. It is when those interests are in accord, then preliminary injunctive relief is warranted. See Heather K., 887 F.Supp. at 1260.

As noted above, however, it is clear that the purposes and interests underlying Plaintiffs statutory claim are not in accord with and in fact contradict the public interest. The Court should find that the granting of injunctive relief here is inconsistent with the public interest and contrary to the societal interests in free speech and political expression and the right of persons to be free from compelled publication of information they find unacceptable and objectionable. Plaintiffs request for relief rests on Congressional authorization of public access channels -- not a Congressional requirement that they be provided. Thus, Plaintiffs right of access is created by a city ordinance, which by its very enactment triggered application of the no-censorship provision of 47 U.S.C. § 531(e). If the public interest rested in compelling access, Congress could have required public access channels. Instead, the only Congressional directive is the no-censorship clause, which itself imposes upon free speech and free press rights. Congress doesn't require that radio stations, or TV stations, or newspapers exist either, but only regulates those that do exist.

Finally, where injunctive relief is necessary to preserve First Amendment values it is nearly always consistent with the public interest. The opposite must also be true and

44

injunctive relief surely must be inconsistent with the public interest when court-ordered speech would infringe the First Amendment rights of the defendant.

E. Plaintiff cannot obtain preliminary injunctive relief without posting a substantial bond

I didn't read anything about this in the court rules!

Under Fed.R.Civ.P. 65(c) a movant must give security for the issuance of a preliminary injunction. "The bond posted under Rule 65(c) 'is a security device, not a limit on the damages"' a defendant may obtain against the movant if warranted by the facts. Branstad, 118 F.Supp. at 944 quoting Minnesota Mining & Mfg. Co. v. Rauh Rubber. Inc., 130 F.3d 1305, 1309 (8th Cir. 1997). Furthermore,

The Eighth Circuit Court of Appeals has warned that, "[a]lthough we allow the district court much discretion in setting bond, we will reverse its order if it abuses that discretion due to some improper purpose, or otherwise fails to require an adequate bond or to make the necessary findings in support of its determinations." Hill v. Xyquad. Inc., 939 F.2d 627, 632 (8th Cir. 1990) (citing Rathmann Group v. Tanenbaum, 889 F.2d 787, 789 (8th Cir. 1989).

Branstad, 118 F.Supp. 2d at 944.

Here, Plaintiff should be required to post a bond sufficient to protect and indemnify Mediacom from any invasion of privacy claim or libel suit that could be brought by the individuals his program branded as abortionists or adulterers. Such an amount in light of escalating jury award in defamation and privacy cases, should be at least $50,000. A bond in this amount does not consider other damages Mediacom may suffer such as subscriber dissatisfaction or cancellations, let alone the irreparable harm to its First Amendment rights should it prevail on its constitutional challenge.

 

 

 

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IV. CONCLUSION

For the reasons stated in its original brief and in this supplemental brief, Mediacom respectfully urges that this Court should: (1) deny Plaintiffs Application for an Expedited Preliminary Injunction and (2) declare that the federal Cable Act and City of Des Moines statutory and franchising scheme that requires Mediacom to provide a public access channel and disseminate content against its choice and without the right to edit or reject it is unconstitutional. They want to overturn the cable act and the City franchise; this could mean only insofar as it requires Mediacom to provide a public access channel, but insofar also as it requires Mediacom to "disseminate content against its choice".

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PROOF OF SERVICE

The undersigned hereby certifies that a true copy of Defendant's Supplemental Brief in Resistance to Plaintiffs Application for Expedited Preliminary Injunction was served upon one of the attorneys of record for each party to the above entitled cause by enclosing the same in an envelope addressed to each such attorney at his/her last known address as shown below, with postage fully paid, and by depositing said envelope in a United States Post Office depository on the 19th day of November, 2002.

 

Is! Marsha Rodd

 

David Leach

4110 S.W. 9~'

Des Moines, IA 50315

Steven Colloton

Gary Hayward

U.S. Attorney

Southern District of Iowa

286 U.S. Courthouse Annex

110 E. Court Avenue

Des Moines, IA 50309-2053

 

DSMS 1:40040274.07
 

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Feedback Box Got feedback? Send it, along with name or url of the article, and a little of the text on either side of where your comment belongs, so I know what you are responding to, and I'll post your response. I might even place it right smack dab in the article! (If you don't want your email posted, SAY SO!)