Home » Legislature & Courts » Briefs and Complaints » Free Speech Briefs and Complaints
SPEAK UP TAMPA BAY PUBLIC ACCESS CASE
Filed September 30, 2002
Click here to read the press release
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SPEAK UP TAMPA BAY PUBLIC ACCESS TELEVISION, INC. d/b/a Tampa Bay Community Network; and
MARY JANE WILLIAMSON,
Outreach Coordinator and Television Producer
Tampa Bay Community Network; and
EDDYE M. BEXLEY,
Hillsborough County Resident and
Creator, Writer, Director, Producer
The World According to Eddye"
WEAVER BARBER
Hillsborough County Resident and Co-Creator, Co-Musical
Director, Co-Producer "The Country Gospel Live Music Show
With The Barbers and Friends"
BETTY S. COHEN,
Hillsborough County Resident
Time Warner Channel 20 Viewer
Plaintiffs,
V.
BOARD OF COUNTY COMMISSIONERS OF HILLSBOROUGH COUNTY, FLORIDA and HILLSBOROUGH COUNTY, FLORIDA
Defendants.
________________________________________/
VERIFIED COMPLAINT
COME NOW Plaintiffs, Speak Up Tampa Bay Public Access Television, Inc., ("Speak Up"), Mary Jane Williamson ("Williamson"), Eddye M. Bexley ("Bexley"), Weaver Barber ("Barber"), and Betty S. Cohen ("Cohen"), and for their Complaint against Defendants Board of County Commissioners of Hillsborough County, Florida, ("BOCC"), and Hillsborough County, Florida ("the County") state and allege as follows:
NATURE OF THE CLAIM
1. This is an action for a declaratory judgment and injunctive relief arising under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.
2. On September 19, 2002, the members of the BOCC voted to approve a final budget which terminated any funding allocation for Plaintiff from the Hillsborough County budget for fiscal year 2003. This final vote followed a vote of the BOCC on August 1, 2002, which removed all previously allocated funding for Speak Up for fiscal year 2003.
3. Plaintiffs seek immediate relief from the Defendants' determination to terminate government funding from Speak Up, and thereby punish, sanction, and otherwise retaliate against Speak Up, as a result of the content and/or viewpoints expressed in some of its cable-casts of protected speech on Hillsborough County's public television access channel. Defendants' efforts, which were actually and/or substantially motivated by a desire to stifle or censor protected and lawful speech, are unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and must be enjoined.
4. Defendants' actions are also in violation of Article V, Section 4 of Hillsborough County Ordinance 80-4, as amended, which provides that the cable operator must provide public access television channel capacity but is prohibited from controlling the content of lawful public access television programming. The unconstitutional BOCC vote to terminate funding effectively terminates the access of all residents of unincorporated Hillsborough County to cable television production services and public access television programming content carried over that channel capacity on Channel 20.
5. The loss of County government funding has caused and continues to cause all Plaintiffs irreparable harm. Plaintiff Speak Up Tampa Bay is contracted with Hillsborough County to provide training for Hillsborough County residents as producers, writers, directors and technical production staff for public television programming, which is and would be cable-cast by Speak Up on Hillsborough County Public Access Channel 20. As of October 1, 2002, Speak Up will be without County operating revenue with which to provide training to County residents such as Plaintiffs Bexley and Barber, or to cable-cast programming on the County's public access cable Channel 20.
6. Through its Community Outreach Department and Plaintiff Williamson, Speak Up also produces its own original television programming, primarily related to Hillsborough County social services organizations and community events and affairs, for cable-casting on Channel 20. Plaintiff Speak Up has no alternative sources of funding with which to provide such programming to Hillsborough residents; moreover, without such funding for its professional operations budget, Plaintiff Speak Up can not cable-cast any of its own or "county resident produced" television programming on Public Access Television Channel 20 to any Hillsborough County resident viewers, such as Plaintiff Cohen, who are cable television subscribers, and who may choose to view Public Access Channel 20. Indeed, as a direct result of this unconstitutional and retaliatory termination of funding, as of October 1, 2002, Channel 20 will "go dark" in unincorporated Hillsborough County. 7. Plaintiffs seek injunctive and declaratory relief from this Court to restore Speak Up's public funding from Hillsborough County for fiscal year 2003, pursuant to the two (2) year management agreement between Speak Up Tampa Bay and Hillsborough County, as amended, dated October 1, 2001.
THE PARTIES
8. Plaintiff, Speak Up is a Florida not-for-profit corporation with its principal place of business at the Public Access Center located at 101 North B Street, Tampa, Florida 33606. It does business as the Tampa Bay Community Network, manages the joint City of Tampa/Hillsborough County Public Television Access Center, and provides television production training and production facilities for the creation and cable-casting of public access programming for Hillsborough County and City of Tampa residents and cable television viewers and consumers.Speak Up Tampa Bay-A Community Affairs Show Speak Up also produces its own original programming for cable-cast on County Channel 20, and intends to do so in the future but for the termination of the County funding.
9.Plaintiff Mary Jane Williamson is a resident of Hillsborough County. She is also a Time Warner Cable subscriber who pays local communications taxes on her monthly cable bill. She is also the Community Outreach Production Coordinator for Tampa Bay Community Network. She produces original public access television programs, primarily about non-profit social service organizations that provide social services in the Hillsborough County Community, or programming on matters of local community interest and affairs. She has produced programming about Alpha House, an assistance program for at-risk mothers, Metropolitan Ministries, a self-help program for homeless families, Shriners' Childrens' Hospital, on healthcare for children, League of Women Voters, producing televised political debates and local candidate forums, and Speak -Up's own regular community affairs discussion program, to cite only a few examples.
10. Plaintiff Eddye M. Bexley is a resident of unincorporated Hillsborough County. She is also a Time Warner Cable subscriber who pays local communications taxes on her monthly cable bill. Since approximately July 2001, after being trained in television production by Speak Up at the public television access center, Bexley has also been a County community television producer, and is the creator, writer, director and producer of "The World According to Eddye," a regular cable-cast show carried on County Channel 20. As of October 1, 2002, Bexley will not be eligible to receive services at the public television access center. She will not be able create or produce her show, or cable-cast it on Channel 20.
11. Plaintiff Weaver Barber, together with his wife Mildred Barber, are both also residents of unincorporated Hillsborough County, Time Warner Cable subscribers, local communications tax payers, and community television producers for Channel 20. Weaver and Mildred Barber are the co-creators, co-music directors and co-producers of "The Country Gospel Live Music Show With The Barbers and Friends," a regular public television show carried on Channel 20. As of October 1, 2002 and the termination of County funding for Speak Up, the Barbers will no longer be eligible to receive production services to create and broadcast their show on Channel 20 through the access center.
12. Plaintiff Betty S. Cohen is a resident of Lutz, in unincorporated Hillsborough County. She is a subscriber to Time Warner cable services and pays a monthly communications tax as charged on her Time Warner bill. She is a viewer of Time Warner cable public access Channel 20. She has viewed Channel 20 in the past and wishes to continue viewing Channel 20, including some of the programs produced by Plaintiffs Williamson and Speak Up, and the independent County resident producers such as Bexley and the Barbers.
13. Defendant, BOCC is a legislative and an administrative body. The BOCC has final policy making authority for the County. The following persons are currently members of the BOCC: Pat Frank (Chair), Jim Norman (Vice Chair), Stacey Easterling, Chris Hart, Jan Platt, Thomas Scott, and Ronda Storms.
14. Defendant Hillsborough County, Florida is a charter county organized under the laws of the state of Florida.
JURISDICTION
15. This action arises under and pursuant to the Constitution of the United States and the First and Fourteenth Amendments thereof, 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 1983. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, and 1343.
VENUE
16. Venue properly lies in this district pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events or omissions giving rise to this claim occurred in this district.
STATEMENT OF FACTS
History of Public Access
17. Cable television is an enormous business that serves millions of households in the United States. There were approximately 210,000 cable subscribers in Hillsborough County as of April 2002. (Time Warner Quarterly Report, 4/23/02, Ex. 2).
18. Almost all cable operators such as Time Warner provide programming to their subscribers through coaxial or digital cable located in conduits under public streets or strung along the utility poles that line those streets. In either case, the construction of a cable system usually entails, as it did in Hillsborough County, significant disruption of public rights-of-way. Accordingly, before cable service may be offered in a community, a franchise must be obtained from the appropriate franchising authority, usually the local government.
19. Before awarding a cable franchise, most municipalities list various requirements that a franchise operator must meet and then solicit bids. A typical requirement is that the cable operator create at least one "public access" channel, and dedicate production facilities, equipment, and staff to maintain it for the use of the public, at little or no cost to the public. Most public access channels, and these support services, are required by the franchise to be available on a first-come, first-served basis at no charge, to individuals and groups for production and presentation of non-profit programming. These public channels are typically exempted from government's and the cable operator's editorial control.
20. Public access television plays an important role in communicating and disseminating ideas and viewpoints, particularly alternative ideas and viewpoints which are not disseminated on mainstream commercial television. Public access television channels, along with other modern electronic media, are today what the speaker's soap box and the printed leaflet were yesterday. They have become the electronic equivalent of such traditional public fora as the public streets, sidewalks and parks.
Public Access in Hillsborough County
21. Hillsborough County has ordained by Cable Ordinance 80-4, as amended, that public access channel(s) shall be made available for use by residents of Hillsborough County free of charge. (Cable Ord. 80-4, Ex. 3).
22. In 1983, the Tampa Cable Television Company initiated public access services as part of its franchise agreement with the City of Tampa. In 1987, Hillsborough County contracted with Jones Intercable, then the owner of the City franchise, for public access services for Hillsborough County residents. These services included free use and training in video production equipment and free cable-casting of programs by City and County residents to the City of Tampa and Hillsborough County cable subscribers.
23. In 1996, Time Warner Entertainment ("Time Warner") acquired the franchise from Jones Intercable. Pursuant to its Franchise Agreement, Time Warner has dedicated certain channel capacity for public, educational and governmental access use. In unincorporated Hillsborough County, the Public Access channel is Channel 20.
24. For a number of years, Time Warner managed and operated the Public Access Channel and the joint City/County Public Access Production Center. The BOCC, however, became dissatisfied with the quality and content of programing on public access and sought to turn over management of the County channel and access center to a local non-profit group when the original Time Warner franchise expired.
The Speak Up Contract
25. On July 10, 2000, the BOCC entered into a Public Access Television Facility Agreement with Speak Up for the use of the Public Access Facility located at 1001 North B Street, Tampa, Florida 33606 by Hillsborough County residents, and for the cable-casting of public access programs to Hillsborough County's cable television viewers on Channel 20.
26. On October 1, 2001, the BOCC entered into the most recent contract with Speak Up ("the Contract"). The contract is a two-year agreement, beginning on October 1, 2001 and running through September 30, 2003. The contract states that neither the government municipality nor Speak Up shall regulate or control the content of the public's lawful programming produced or cable-cast by the access station. (Public Access Television Facility Management Agreement, Ex. 4).
27. Speak Up also entered into a similar agreement with the City of Tampa to provide training and production assistance to City of Tampa residents and public access programming for cable television subscribers in the City of Tampa on Time Warner's Channel 19. Shows produced by both City and County producers were traditionally cable-cast on both the City and the County channels and public access content was shared between the two cable-cast outlets.
28. The combination of the public funding received from the City of Tampa and the County, constitutes approximately the entire operating budget of Speak Up. The joint Public Access Center, and all of its equipment, staff, production facilities, remote production truck, and any and all other operations assets, have historically been shared between and among the City and the County on a joint and several basis, for the full benefit of both City and County residents. With some limited exceptions, it is virtually impossible to segregate individualized ownership and/or use of most of those operations assets of the Public Access Center between the County and the City.
Funding for Speak Up
29. Pursuant to its original contract, Speak Up was to be funded by a franchise fee which was paid only by County cable subscribers.
30. In October 2001, the Florida State legislature changed the cable franchise fee structure, and began referring to the fee as State and local "communications tax." See, Fla. Stat. Chapter 202 et seq. (2002). Despite that change, the funds comprising the so-called local "tax" were still generated in the same way as the franchise fee, from designated funds denominated as local "communications tax" paid by cable subscribers on their monthly bills. Those local "communications tax" funds were collected and transmitted by the cable operators to the State, and then reallocated back to the local municipalities by the State, pursuant to a formula generated by the State legislature. See, Fla. Stat. §202.20(2002) Upon receipt by the County, the communications tax revenue from the State was originally maintained by the County in a separate fund, segregated from the County's general revenue funds.
31. The BOCC later voted to change the local allocation of the telecommunications tax funds received from a segregated telecommunications fund to place it with the general revenue of the "unincorporated area general fund" which funds a number of services provided by Hillsborough County. A portion of the money from this fund has been appropriated to Speak Up under the contract agreement with Speak- Up. For fiscal years 2002 and 2003, Speak Up's contract provided it was to be funded by Hillsborough County in the approximate amount of $355,443. (See Ex. 4).
Early Efforts to Censor Speak Up
32. In June 2001, some members of the BOCC expressed concerns about the content of some cable-casts on Public Access. Speak Up had begun actual day to day management of the Public Access Center and services to the public there on or about April 2000, prior to its first contract with the county of July 10, 2000. Its first contract was to be automatically renewed, barring certain provisos. With the concern over content raised by some commissioners in June 2001, the Speak Up contract was re-opened for possible amendment. At BOCC regular meetings of June 20, 2001, and June 27, 2001, in discussing the draft amended contract's proposed requirement of an anti-obscenity clause, Commissioners Storms and Norman emphasized their "personal interest in obscenity issues" on public access television, (Storms on 6/20/01), and concern for the televised airing of "obscenity stuff." (Norman on 6/27/01). Several members of the BOCC began to voice disapproval of the content of a particular cable-cast on public access, in particular, a show called "Insanity Defense" which aired on or about April 6, 2001. According to Commissioner Storms' comments at the BOCC budget reconciliation session of June 20, 2001 "[The show]... includes vulgarity beyond measure." Storms protested that even though the shows on public access television are not pornographic or obscene, they "contribute to women being sexual objects even if the woman consents," and that such shows "pollute the community," and should not be funded. Commissioner Chris Hart, at the same meeting, acknowledged that prior to Speak Up's participation in the management of public access television, "part of two years was taken to address ...what was on Public Access. A great concern was that it was anti-semitic, which was racial, which was foul, which was disgraceful to women and children and generally abhorrent to the Commission because it was Public Access." Commissioner Hart claimed that it was his understanding that if Public Access was given to a non-profit organization, then community standards could be made a part of the contract. Commissioner Storms complained that Speak Up cited to the First Amendment and principles of free speech rights when questioned about the airing of material "that's not obscenity, that's not pornography," but which "we must allow that to go across our air waves, we must fund that."
33.Commissioner Storms had submitted a video of the "Insanity Defense" program to the Hillsborough County State Attorney's Office with a request that the office initiate an obscenity prosecution. The State Attorney for the Thirteenth Judicial Circuit, in and for Hillsborough County, Mark Ober, on September 6, 2001 determined that the material was not obscene and he would not prosecute (Letter of 9/6/01 from Mark Ober, Ex.5).
34. Commissioner Norman requested that the Hillsborough County Attorney's Office "review the issue of hard-core pornography on Public Access, and advise [him] of any action that may be taken in response to the airing of this kind of material." In a detailed Memorandum to him dated June 19, 2001, Asst. County Attorney Rebecca M. Kert reviewed the issue, reminded Commissioner Norman, among other things, that both Hillsborough County Ordinance 80-4, as amended, and the Public Access agreement between the county and Speak Up, and 47 U.S.C.A. 531(e), all prohibit Speak Up from "exercising any editorial control over a public access channel," other than permitting a cable operator to refuse to transmit any obscene programming on any public access channel. Ms. Kert noted that not only did Speak Up review the subject program and determine it was not obscene, but Ms. Kert also reviewed the program and "it did not contain any nudity, although the subject matter was of a sexual nature." (Mem.of Asst. County Attorney Rebecca M. Kert, 6/19/01, Ex.6).
35. In the September 6, 2001 BOCC meeting, Commissioner Storms again urged the BOCC to not fund Speak Up because "there is nothing we can do to prevent $325,000 to go to support something like that," referring to the videotape of the show which the State Attorney had reviewed and declined to prosecute.
36. Commissioner Hart, at the BOCC meeting of September 19, 2001, again voiced his concern that the reason the BOCC gave Public Access to a not-for-profit organization was "so community standards could be established." Commissioner Hart was not satisfied with the draft amended contract between the County and Speak Up because, according to him, it did not address how to deal with offensive material. He stated "I don't want pornography on there."
37. Commissioner Scott stated that he too had viewed the subject video tape and thought it was "despicable and offensive." At the BOCC regular meeting of September 19, 2001, he opined that the BOCC must do something to exercise editorial control over the programming on Public Access, "I don't mean to the point where we, you know, legally in terms of trying to not allow free speech," but, having said that, Commissioner Scott then states that he believes the real issue is "more or less making sure we don't have obscenity and nudity and that kind of thing."
38. At the same BOCC meeting, Commissioner Easterling voiced her concerns that Public Access aired a show considered by many to be "extremely objectionable and offensive," and which could be called pornography despite the fact that it is not legally obscene. She asserted that "this is a slippery slope problem," and wondered with respect to the content of Public Access programming, "where does it stop?"
39. On or about October 1, 2001, Speak Up and the county entered into the new, two (2) year agreement which was to run through September 30, 2003 but, like all vendor contracts with the county, was "subject to funding." The agreement prohibited the exercise of editorial control of lawful, non-obscene programming by Speak Up. (See Ex. 4).
40. On November 7, 2001, the BOCC took up the issue of public access again. After much discussion devoted to different possible proposals for controlling or influencing the content of public access programming to conform to some of the commissioners' view of the "community's standards," the BOCC, on motion by Commissioner Storms after a strong recommendation by Commissioner Hart, voted to ask the Hillsborough County Citizens' Advisory Committee ("CAC,") "to come back and give us recommendations on establishing "community standards." Commissioner Hart also discussed the possibility of using a programming grid system so "those adults and those other people who want to turn on things that some people consider totally distasteful without any legal definition to it" can view that material. Commissioner Hart went on to discuss some limitations of the content on public access "without addressing what they can say or not say."
41. Also on November 7, 2001, at the regular BOCC meeting, the board was told by its counsel that "the reason that the recommendation was made to have a non-profit to begin with is that the case law and the judges who look at these are much more lenient with private groups controlling speech than they are with government groups controlling speech and dictating what is or is not acceptable." The County Attorney also suggested that if the board adopted community standards for public access cable-casts it would be a relevant issue in litigation. Because the matter was referred to the Citizens' Advisory Committee for expected recommendations related to possible contract amendments requiring public access cable-casts to conform to "community standards," the County's contract funding of Speak Up was then limited to six (6) months.
42. At the BOCC meeting of November 21, 2001, the BOCC was confronted with the decision of the Citizens' Advisory Committee NOT to recommend that a "community standards" provision be included in the contract with Speak Up. (Mem. of Asst. County Attorney Orlando Perez to CAC Re: Review of Community Standards, dated 10/25/01, Ex. 7; and Mem. of Edith Stewart to the BOCC, Re: CAC Review of Community Standards, dated 11/16/01, Ex. 8). Because the Citizens' Advisory Board recommended that no community standards be adopted, and because the State Attorney had found no criminal liability for any of the programming, Commissioner Easterling moved the board go forward and recommend that Speak Up now receive its full two (2) year contract for the management of Public Access. After strenuous objection by Commissioner Storms, Commissioner Norman questioned the Speak Up representative as to what else they are going to do to "clean up some of this stuff," aside from putting the "nasty" content on at night. The BOCC ultimately voted 6 to 1, with Commissioner Storms dissenting, to fund the full two(2) year contract.
"The Happy Show"
43. On March 5, 2002, at 11 p.m., Charles Perkins, a City of Tampa Public Access producer, cable-cast live an hour-long program called "The Happy Show." The program appears to be an attempt to satire racial and religious stereotypes. It includes a few taped minutes of female nudity, including several seconds of close-up images of female genitalia. Mr. Perkins did not include adult content advisories for mature programming in his cable-cast, nor did he identify himself by his real name. However, Speak Up cable-cast a generic adult content advisory immediately before and after the program.
44. Soon after the cable-cast, Frank Turano, then Hillsborough County's Cable TV Administrator, contacted Speak Up to advise that a complaint had been received concerning the content of Mr. Perkins' program. Turano, on behalf of the County, requested that Speak Up provide a copy of the cable-cast for review. Speak Up provided a copy of the tape to Mr. Turano on March 7, 2002.
45. On March 12, 2002, Perkins cable-cast a taped replay of the above-described program.
Commissioner Storms Seeks Prosecution of "Happy Show" Producer
46. On March 18, 2002, Commissioner Storms sent a memorandum to the County Attorney reporting that a constituent had contacted her about the March 12, 2002 cable-cast of Perkins' program, concerned that its content was "pornographic." Ms. Storms asked the County Attorney to forward a tape of the cable-cast to the State Attorney for a "determination as to whether or not the material is pornographic." (Mem. of 3/18/02, from Storms to Acton, Ex.9). Mr. Turano then forwarded a tape of the March 5, 2002 cable-cast to the State Attorney "for possible prosecution." (Letter of 3/19/02 from Turano to Ober, Ex. 10).
47. Commissioner Storms also requested a copy of the tape of Mr. Perkins' program. Mr. Turano wrote to Speak Up, citing "a number of complaints" concerning the content of Mr. Perkins' program, and stated "[t]hese complaints also raise concerns about the County's agreement with Speak Up, enforcement of Speak Up's policies and procedures, and adherence to said policies." Specifically, Mr. Turano mentioned deficiencies with: 1) adult content advisories prior to, during and after programs intended for mature audiences, 2) signed releases from talent and written permission from copyright holders, and 3) identification of producers at the conclusion of each program. Mr. Turano asserted that a number of those obligations did not appear to be met by Perkins' program and asked what actions Speak Up has taken or intends to take "to correct the identified problems." Letter of 3/19/02, from Turano to Koss, Ex. 11).
Speak Up Responds
48. On March 25, 2002, Speak Up Executive Director Greg Koss responded to Mr. Turano's letter for Speak Up, advising Mr. Turano as follows:
- Speak Up does not pre-screen programing. Producers,
on their agreements with Speak Up, are asked to inform
Speak Up whether programs contain adult content and
if they do, to include adult content advisories. Mr.
Perkins checked "NO" when asked on his series contract
and program proposal if his program was intended for
mature audiences and would require a viewer advisory.
Speak- Up cable-cast a generic viewer advisory immediately
before and after Mr. Perkins' cable-cast.
- Pursuant to the Agreement (Section 5), Speak Up requires all producers to obtain copyright clearances and model releases. As with Time-Warner and since the beginning of Speak Up's relationships with the City and County, producers have not been asked to provide clearances or releases to Speak Up prior to cable-casts, but are expected to do so if a complaint is made by an interested party. Producers may be disciplined if such clearances are not obtained and copyright violations or talent complaints occur.
- Mr. Perkins did not identify himself as required by Speak Up policies and procedures. He was warned that he will be suspended if he violates that policy again.
(Letter of 3/25/02 form Koss to Turano, Ex.12).
Commissioner Storms Initiates the BOCC Campaign to Terminate Funding for Speak Up in Retaliation for Content of Programming
49. On March 26, 2002, Commissioner Storms spoke to the Tampa Tribune newspaper concerning Mr. Perkins' program, contending it contained obscenity. (Byrd, Ted, "Ronda Storms: Happy Show Obscene," Tampa Tribune, March 27, 2002, Ex. 13). On March 27, 2002, Commissioner Storms appeared on a radio broadcast denouncing the content of Mr. Perkins' program. She also met with a news media representative concerning the show and played the videotape. According to the newspaper account, Commissioner Storms fast-forwarded through those portions of the program that did not contain any nudity, and again opined that the images of genitalia were obscene. According to a March 28, St. Petersburg Times report, in response to this program, Commissioner Storms "said she may again try to hit the station in the pocketbook if she makes no headway with (State Attorney Mark ) Ober." (Varian, Bill, "Commissioner Storms Wants an Investigation of the Public Access Station Which Receives Public Funds", St. Petersburg Times, March 28, 2002, Ex. 14).
50. On March 29, 2002, Commissioner Storms scheduled an agenda item for the April 3, 2002 BOCC meeting concerning the Speak Up Agreement with the county. Also that day, she sent an email to an unknown number of people, labeling it "Urgent Please Read Immediately." Her email focuses on her conception of Mr. Perkins' program, describing its sexually explicit content in graphic detail, and omitting any detailed description of the balance of the program's content. She references the County's contract with Speak Up, saying "[i]n the opinion of the County Attorney, public access may have failed to comply with the terms of the contract, and public access has been notified to that effect." (Email from Ronda Storms of 4/1/02, Exhibit 15).
51. On April 1, 2002, Commissioner Storms held a news conference where, holding a
copy of the United States Constitution, she stated that there was nothing in that document requiring the government to fund public access. According to a news report in the St. Petersburg Times on April 2, 2002, (Ex. 17), Commissioner Storms indicated her intent to ask her fellow commissioners to cancel the contract with [Speak Up]. Claiming that the cable-cast of "The Happy Show" was obscene and that Speak Up had violated its contract with the county, Commissioner Storms stated, "They didn't get Al Capone for murder or racketeering, they got him for tax evasion." (Ex. 16, emphasis Added). Commissioner Storms also claimed she was in her commission office "until 2:00 a.m. Saturday" sending a lengthy email about her views on the topic to neighborhood leaders and supporters. According to the press, she said it was not a campaign mail-out for her re-election bid in her southeast Hillsborough district, but an attempt to update constituents on an important issue. "This to me is a cosmic, universal issue-a life purpose issue," she said. "I believe that people are called into office to do things. I believe I am here for just such a time as this."
52. Subsequent to her email, Commissioner Storms began to lend her political support to a new citizens' group formed by Storms' political supporters to specifically oppose the county's agreement to provide public access television. The group, called "No Taxes for Public Access," began a widespread political campaign to influence the BOCC members in this election year to oppose funding for public access television in the county budget for fiscal year 2003.
The BOCC Demands Documentation
53. At the April 3, 2002 BOCC meeting, Commissioner Storms again addressed what she described as objectionable content in Mr. Perkins' program, describing it in detail. Commissioner Storms claimed Speak Up had violated its contract with the County by not requiring adult content disclaimers at the beginning, middle and end of the Mr. Perkins program, and by failing to produce the requested copyright releases. She said she had prepared "some excerpts" of the program " on video so [commissioners] can see for yourself whether or not . . .they've met with the terms of the contract." The BOCC voted 4-3 to view the video excerpts of the program's content made by Commissioner Storms, but only on the dais, away from public view. Ultimately, the BOCC did not view Commissioner Storms' excerpts during the meeting because of protests that to do so in that fashion would violate the Sunshine Law.
54. The BOCC then voted 5-2, with Commissioners Platt and Frank voting no, to give Speak Up 24 hours to provide all documentation required by the contract, and authorized the County Attorney, if it was not produced, to declare a breach of the contract, and give Speak Up 90-days "notice to cure." Thereafter, by letter, the County Attorney stated that the BOCC voted to require Speak Up "to provide all documents required by the contract with Hillsborough County" or a breach would be declared. (Letter of 4/1/02 from Acton to Snyder, Ex. 17).
Perkins Provides Documentation
55. On April 4, 2002, Mr. Perkins, through his attorney, furnished the County Attorney copies of a release signed by the woman appearing in the majority of the nude scenes in Mr. Perkins' program, along with a fax from the American Society of Composers and Publishers, to the effect that licensing fees for songs in its registry had been paid by Time Warner for music cable-casts originating on Time Warner channels. Mr. Perkins' counsel also noted that under Florida law, no releases were required for persons appearing in street scenes, and that under current Speak Up policy, Mr. Perkins was not required to include adult content advisories in his program because he had not stated, prior to the live cable-cast, that he intended to include adult content in his program. (Letter of 4/4/02 from Lirot to Acton, Ex. 18). Former counsel for Speak Up also wrote to the County Attorney noting that the documentation provided by Mr. Perkins' counsel appeared to satisfy the county's request for documentation. (Letter of 4/4/02 from Snyder to Acton, Ex. 19).
The BOCC Claims Breach
56. After business hours on April 5, 2002, the County Attorney notified Speak Up that the County considered Speak Up to be in breach of the contract and intended to terminate the contract in 90 days unless Speak Up cured the alleged breaches to the County's satisfaction. (Letter of 4/5/02 from Acton To Snyder, Ex. 20).
57. On April 8, 2002, former counsel for Speak Up wrote to the County Attorney asking what specific remedial or prospective action Hillsborough County sought in order to cure to its satisfaction the alleged breach(es) by Speak Up. In response, on April 9, 2002, the County Attorney asserted that the contract does not impose a duty on the county to suggest cures to Speak Up, and whether a proffered cure satisfied the county ultimately must be decided by the Board of County Commissioners. (Letter of 4/0/02 from Snyder to Acton, Ex. 21; Letter of 4/9/02 from Acton to Snyder, Ex. 22).
Commissioner Easterling Calls for Defunding of Speak Up
58. On April 8, 2002, an article in the St. Petersburg Times quoted Commissioner Easterling on her strategy to censor Speak Up: "Easterling said she doesn't think the county should be enabling obscene programing. She said, however, that the best strategy might be to cut funding for the station, await a First Amendment lawsuit that is sure to follow, and let the courts decide." (Varian, Bill, "Publicity May Help Storms," St. Petersburg Times, April 8, 2002, Ex. 23).
Commissioner Storms Circulates Picture to Her Colleagues
59. On or about April 10, 2002, at approximately 11:00 p.m. in the evening, Commissioner Storms forwarded an email to all of her BOCC colleagues' aides under the subject line "My Picture." She said she had received the forwarded attachment by email. The email attachment Ms. Storms titled "My Picture" was a color close- up photograph of a woman's pierced vaginal labia being touched or fondled. The email of the picture was received by all county commission aides at the offices of the BOCC, and was widely discussed and protested by the county employees, however, there is some question as to whether the picture was actually viewed by the other commissioners. The picture from Commissioner Storms' email is not filed herewith, but a copy maintained by Commissioner Storms, presumably as a public record, is available for filing if the Court deems it necessary to the resolution of these issues. (Email of 4/11/02 from Storms, without attachment, Ex.24).
Commissioner Norman Voices Support for Commissioner Storms' Position
60. Betty Crislip is a Hillsborough County citizen active in the "No Taxes for Public Access" group which was working to influence the Commissioners to cut county funding for public access television. In response to a letter from Ms. Crislip, Commissioner Norman replied, and stated in relevant part:
"I believe that most Commissioners misunderstood Commissioner Storms' e-mail last week. I did not! Commissioner Storms is fed up with this smut (like I am) and was giving each Commissioner an example of what our tax dollars are funding on Public Access." (Letter of 4/16/02 from Norman to Crislip, Ex. 25).
There is no indication or evidence that Commissioner Storms' vagina picture was ever cable-cast by or associated with Speak Up or its supporters in any way.
State Attorney Concludes "The Happy Show" is NOT Obscene
61. On May 8, 2002, Mark Ober, the Hillsborough County State Attorney, issued an opinion that the Happy Show was not obscene. He also ruled that a perceived threat to Commissioner Storms by a black sock puppet called "Black Sock," a character on "The Happy Show, "did not constitute a criminal threat, as Commissioner Storms had previously claimed. Finally, he also found that the emailed photograph of a woman's pierced genitalia which Commissioner Storms claimed had been sent to her was not obscene. (Letter of 5/8/02 from Ober to Acton, Ex. 26).
Reverend Commissioner Scott Protests that Supporting Public Access Content Violates His Obligations to His Church and Congregation
62. At the BOCC meeting of May 15, 2002, in a specific reference to public access programming content, Commissioner Scott, who when not attending to his duties as a County Commissioner is also a Reverend and a preacher with his own church, pulpit and congregation at the 34th Street Church of God in Tampa, indicated his discomfort with preaching "one thing on Sunday in my congregation and then live differently during the week."
County Commission Receives Petitions
from No Taxes for Public Access Group;
Commissioner Easterling Responds With Mass Letter Stating
That Her Christian Values Support Her Votes Against
the Contract with Speak Up
63. Throughout May and June 2002, all of the County Commissioners received numerous petitions from the "No Taxes for Public Access" group which had been formed to rally support for Commissioner Storms' crusade to terminate county funding for Speak Up. After the petitions were received, Commissioner Easterling mass mailed correspondence in response to the signatories on the petitions from her Commission office. Apparently, at least two versions of Commissioner Easterling's correspondence were sent out. Because her correspondence so clearly evidences that her motivation for the allegations of "breach of contract" against Speak Up were pretextual in nature, and merely an attempt to muzzle public access television, one of her letters is quoted in its entirety. In her letter of May 18, 2002, she stated :
Thank you for your petition regarding Public Access Television funding. I sincerely appreciate your comments.
It is my belief that Commissioner Storms joins with me in support of the use of internet filters at our public libraries, as well as the restriction of publically funded entities, including Public Access Television, from allowing pornography to be displayed or disseminated using our tax dollars.
While some in the community may consider this a First Amendment issue, I consider it a re-affirmation of our Christian values, upon which our great nation was founded.
During my term as Commissioner, I have had only two opportunities to record a vote on this matter and my votes were in support of the motion to apply "breach of contract" provisions to the contract holder of "Speak Up Tampa Bay" as a result of the contractual requirements for which they may have been in violation.
While this may not ultimately be successful in litigation, it sends a clear message to those that flagrantly violate our rights as taxpayers and conservatives that we are willing to stand for family values at the risk of being ridiculed by the media and others who may hold opposing views.
I hope this clarifies your questions on this matter and thank you for your invaluable support." (Emphasis Added)
Letter of 5/15/02 from Easterling to Bowell, Ex. 27, emphasis added).
"Saheeb's Dream" Cable-Casts Public Official's Suicide;Commissioner Storms Issues Renewed Call for Censorship by De-Funding
64. On or about May 10, 2002, "Saheeb's Dream" was cable-cast on Channels 19 and 20. This particular episode of the weekly show contained as part of the production two (2) minutes of graphic footage of the 1987 public suicide of R. Budd Dwyer, then Pennsylvania's State Treasurer. Dwyer, then facing jail time for defrauding the state, called a news conference in January 1987. Reporters assumed he would resign, but after a 30 minute critique of the legal system, he pulled out a .357 caliber Magnum, put the gun in his mouth and fired. He died instantly. Television cameras recorded the grisly death, and television stations across the country aired part of it at the time.
65. On June 14, 2002, Commissioner Storms called a news conference to protest violence in this cable-cast, and maintained that Speak Up broke its contract with the County by not obtaining a signed release from the deceased Dwyer, or his heirs, before airing the footage. She also stated that she intended to refer this matter to Mark Ober, Hillsborough County State Attorney, for possible prosecution. Charles Perkins, public access producer of "The Happy Show" also attended this news conference. Commissioner Storms stated, "What I think this video reveals is the absolute defiance of the public access people." She issued a new call for community leaders and others to join her in opposing public access funding. "I am calling for people of stature to condemn this," she said. "I am frantic for the people in our community and the standard we are setting. Clearly the people at public access are asking Where is the line? We can do nothing but answer the question." (Varian, Bill,
"Public TV Producer Crashes Storms Party," St. Petersburg Times, June 15, 2002. Ex. 29; Byrd, Ted, "Storms, Foe Plea for Public Support," Tampa Tribune, June 16, 2002, Ex. 30.
Speak Up Proposes a "Cure"
66. On July 24, 2002, after several months of negotiation with representatives of the County Attorney's Office, Speak Up delivered to the County Attorney a "Proposal for Cure" of the alleged contractual breaches identified by the BOCC. (Proposal for Cure, Ex. 31) Under the Proposal for Cure, Speak Up offered (while not admitting any breach and reserving all rights) a proposal to cure the alleged breach by: (1) implementing a programming cable-cast grid to, among other things, schedule adult and mature content programming in the latest available time slots, and requiring producers to inform Speak Up prior to cable-cast of the nature of the content of their programs based upon the categories in that program grid. Speak Up further agreed to suspend producers for making intentional false statements on their project information and series agreements; (2) providing adult content advisories before, during and immediately after all "Mature Audience" programming periods; (3) providing mandatory training for producers concerning basic intellectual property legal issues such as copyright clearances and model releases, and developing methods to document copyright clearances and model releases; and (4) randomly auditing programming for compliance with Speak Up's Policy and Procedures and disciplining producers who fail to comply.
The BOCC Accepts Speak Up's Proposed Cure But Commissioners Immediately Signal Intent to Terminate Funding for Speak Up
67. On July 24, 2002, the BOCC addressed the issue of whether to accept Speak Up's "Proposal for Cure" of the alleged breach of contract. The County Attorney recommended that the BOCC accept the Proposal for Cure at that time. Several Commissioners began to offer comments on the issue of public access programming content.
68. Commissioner Scott reminded the BOCC that he was "not supportive of any kind of pornography or on seen [sic][obscene] whatever." The comments abruptly stopped, however, when the County Attorney cautioned that "there is a lot of legal risk associated with the discussion of this topic in public." Commissioner Storms then stated: "I have another motion but I'm going to?I'm going to hold that in abeyance for another time where we might discuss other issues that are pertinent to this Board." Commissioner Norman then asked about the term of the Speak Up contract and its funding. The County Attorney noted that the contract funding was "contingent upon the availability of funding."
69. One minute and eighteen seconds after the BOCC voted their approval of the "Proposal for Cure," Commissioner Norman then asked that the Speak Up contract be "flagged" to be re-opened and discussed at the BOCC budget reconciliation meeting scheduled for one week later, on August 1. The County Attorney then stated: "Commissioners, I would advise that because you're sitting right now as an administrative body on a particular contract, but you will be sitting in the future as a policy-sitting body on a whole budget for the entire county, that you wait until you're in that other mode. . . . ." Commissioner Norman then withdrew his request to flag the Speak Up Agreement "at that time." The "Cure" was then accepted, if only on its face, by the BOCC, with Easterling, Storms and Norman dissenting. As subsequent events reveal, this nominal acceptance by the BOCC was nothing but a sham, and a dead-end detour from the unconstitutionally motivated termination of funding which was to follow one short week later.
The BOCC Votes to Terminate Funding for Speak Up
70. On August 1, 2002, the BOCC met for its Budget Reconciliation Workshop. During the meeting, on a motion by Commissioner Storms, the BOCC voted 4 to 3 to "de- fund" Speak Up for 2003, the final year of the contract (October 1, 2002 to September 30, 2003). Commissioners Scott, Easterling, Norman and Storms voted to cancel or rescind Speak Up's entire proposed budget allocation for fiscal year 2003. Commissioners Platt, Hart and Frank voted against the de-funding and, after the termination of funding vote carried, Commissioners Platt and Frank requested that the item be "flagged" for recall at the subsequent Final Public Hearing on the Budget, scheduled for September 19, 2002.
71. On September 10, 2002, the Florida primary election was held. All commissioners, except Commissioner Easterling, were either returned to office (Storms), or received their political parties' nominations for the general election to be held in November (Norman, Scott, Frank, Hart).
72. On September 19, 2002, the BOCC held their final public hearing on the budget for fiscal year 2003. Commissioner Easterling, who had lost her election the previous week and was now a "lame duck" official, absented herself from the meeting.
73. After closing the public comment portion of the hearing, Commissioner Platt moved to reinstate Speak Up's 2003 funding. Commissioners Storms, Scott, Hart and Norman all spoke self-servingly of their desire to terminate funding for Speak Up as a matter of "funding priorities." The BOCC voted 2 to 4, with Commissioners Platt and Frank voting yes, to the motion to reinstate Speak Up's funding in the 2003 budget. That motion failed. The BOCC then voted 5 to 1, with Commissioner Platt voting no, to accept a final version of the budget which provided no reallocation for funding Speak Up under its contract with the county.
The Termination of Funding is a Pretext for Censorship
74. From the approximately $9,000,000 in local "communications tax" revenue received by the county for fiscal year 2002, the BOCC originally budgeted $355,444, or .039% of the communications taxes collected, to fund the Speak Up contract for fiscal year 2003. According to County Budget Director Eric Johnson, speaking at the September 19, 2002 public hearing, if all proposed BOCC funding priorities, including Speak Up, were funded from the county contingency reserve account, there would still be over $3,000,000 in the account for fiscal year 2003.
75. At the August 1, 2002 Budget Reconciliation Workshop, while claiming Speak Up was not a funding priority, the BOCC also voted to lower the county tax millage rate by .25 mills. (Recommended Budget for fiscal year 2003, Volume I and II, as adopted, Ex. 33).
76. At the August 1, 2002, Budget Reconciliation Workshop, the BOCC also continued funding for both the Government and Education cable television channels. In fact, in the final budget for fiscal year 2003, funding for the Tampa Educational Cable Consortium was maintained at $519,000, while funding for the county Communications Department, which operates Government Access Television, and which cable-casts and maintains tapes of all BOCC meetings, was increased from $4,031,460 in fiscal year 2002 to $4,367,220, an increase of approximately 8.3% or $335,760, almost the entire proposed budget of Public Access, for fiscal year 2003.
COUNT I?VIOLATION OF THE FIRST AMENDMENT
77. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 77, as if set forth fully herein.
78. The Defendants' decision to terminate funding for Speak Up was actually and/or substantially motivated by, and in retaliation and punishment for, Plaintiffs Speak Up's, Williamson's, Bexley's and Barber's exercise of free speech, and Plaintiff Cohen's right to receive such speech, all as guaranteed by the First and Fourteenth Amendments of the United States Constitution.
79. The Defendants acted under color of the laws of Florida in retaliating and punishing Plaintiffs for their exercise of rights protected by the First and Fourteenth Amendments to the United States Constitution, in clear contravention of established law under the First and Fourteenth Amendments to the United States Constitution, and under the guarantees of the Civil Rights Act of 1871, as amend 42 U.S.C. § 1983.
80. The Defendants have final policy making authority subjecting them to liability under § 1983.
81. By its vote to terminate funding for Speak Up, members of the BOCC majority all acted with an improper, unconstitutional motive to violate Plaintiffs' constitutional rights. Evidence of the unconstitutional motive of the majority who voted to terminate Speak Up's funding is demonstrated in the recordings of the BOCC meetings, correspondence, emails and newspaper articles, all submitted to the Court herewith and incorporated in their entirety herein.
82. Plaintiffs will all be irreparably harmed by the conduct of Defendants undertaken in violation of the First Amendment as made applicable to the states by the Fourteenth Amendment as set forth above.
83. Plaintiffs have no adequate remedy at law for the violations alleged.
84. WHEREFORE, Plaintiffs pray:
(a) that this Court issue an Order declaring that the Defendants may not inflict, or take any steps to inflict any punishment, retaliation or sanctions of any kind against Speak Up including, but not limited to terminating Speak Up's public funding, or terminating Speak Up's access center management contract as a result of its cable-cast of protected speech as set forth herein, and declaring that any such punishment, retaliation or sanction violates the First Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment;
(b) that this Court issue an Order preliminarily and permanently enjoining the Defendants from inflicting, or taking any steps to inflict, any punishment, retaliation or sanction of any kind against Speak Up, including, but not limited to, terminating Speak Up's funding, or terminating Speak Up's access center management contract as a result of its cable-cast of protected speech as set forth herein, and declaring that any such punishment, retaliation or sanction violates the First Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment;
(c) that this Court preliminarily and permanently enjoin the Defendants from taking over and/or transferring control and/or programming authority over cable television Channel 20 from Speak Up to any other person or entity; and
(d) that this Court award Plaintiffs reasonable attorneys' fees and the costs of this action pursuant to 42 U.S.C. § 1988; and
(e) that this court order such other and further relief as it deems just and proper.
Respectfully submitted,
Rochelle A. Reback, Attorney
ROCHELLE A. REBACK
ATTORNEY AT LAW
Florida Bar No. 0562645
405 W. Azeele Street
Tampa, FL 33606-2201
(813) 251-9660
(813) 253-3580 - Facsimile
Paul W. Rebein, Esq.
Florida Bar No. 488003
SHOOK, HARDY & BACON L.L.P.
100 N. Tampa Street, Suite 2900
Tampa, FL 33602
(813) 2027100
(813) 2218837 Facsimile
COOPERATING ATTORNEY,
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF FLORIDA, INC.
and
Mark Brown, Esq.
Kentucky Bar No. 02895
1401 61st Street South
St. Petersburg, FL 33707
(727) 562-7856
(727) 347-3738
COOPERATING ATTORNEY,
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF FLORIDA, INC.
ATTORNEYS FOR PLAINTIFFS
VERIFICATION
THE FOREGOING FACTS ARE TRUE AND CORRECT TO THE BEST OF MY PERSONAL KNOWLEDGE AND BELIEF.
Speak Up Tampa Bay Public Television, Inc d/b/a Tampa Bay Community Network.
By Gregory A. Koss, Executive Director
Date: September 30, 2002
Subscribed and sworn to before me a notary public, this 30th day of September 2002.
