Home » Legislature & Courts » Briefs and Complaints » Free Speech Briefs and Complaints
Preliminary Injunction in Tampa Cable Access Censorship Case
Issued November 12, 2002
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, et al.,
Plaintiffs,
v. Case No. 8:02-cv-1762-T-30MSS
BOARD OF HILLSBOROUGH COUNTY
COMMISSIONERS and HILLSBOROUGH
COUNTY, FLORIDA,
Defendants.
_____________________________________/
ORDER GRANTING PRELIMINARY INJUNCTION
THIS CAUSE is before the Court upon Plaintiffs' Motion for Preliminary Injunction (Dkt. #4), and Defendants' response thereto (Dkt. #39). Having considered Plaintiffs' Motion, the response, and having heard the arguments of the parties on November 4, 2002, the Court finds that a preliminary injunction is appropriate in this case.
FACTUAL BACKGROUND
Plaintiff Speak Up Tampa Bay Public Access Television, Inc. ("Speak Up") is a non-profit corporation in Tampa, Florida, which manages the joint City of Tampa/Hillsborough County public television access center. Speak Up 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. Several producers of public access programming and a viewer of this programming are also Plaintiffs. Defendants in this action are the Board of County Commissioners of Hillsborough County ("BOCC") and Hillsborough County.
Speak Up first entered a contract for the production and cable-casting of public access programs with the BOCC on July 10, 2000. (Complaint, ¶ 25). The most recent contract ("the Contract") between Speak Up and the BOCC is a two year agreement, beginning on October 1, 2001, and running through September 30, 2003. (Complaint, ¶ 26). Under the Contract, Speak Up was to operate the public access channel, train residents in the use of public access equipment, maintain and repair all video equipment, facilitate and promote access programming, and perform various other responsibilities related to the operation of the channel. (Complaint, exhibit 4). In exchange, Hillsborough County was to fund Speak Up in the amount of $29,620.25 per month. (Complaint, exhibit 4).
During the term of the Contract, much public debate and controversy developed regarding the programming aired on the public access channel. According to the Complaint, individual commissioners made repeated public comments regarding the "obscenity" that was being aired on public access television. One Commissioner, Ronda Storms, submitted a video of objectionable programming to the Hillsborough County State Attorney's office with a request to initiate an obscenity prosecution. After reviewing the material, the State Attorney determined that the material was not obscene and the individual broadcasting the material would not be prosecuted. (Complaint, ¶ 33). A second Commissioner, Jim Norman, requested a review of the "pornography" on public access by the Hillsborough County Attorney's office, and requested that the County Attorney's office "advise them of any action that may be taken in response to the airing of this kind of material." (Complaint, ¶ 34).
The controversy escalated in 2002, an election year in which six of the seven commissioners were up for re-election. (Complaint, note 6). Commissioner Storms made a second submission of material, "The Happy Show" which aired on March 12, 2002, to the State Attorney's office for "possible prosecution." (Complaint, ¶ 46). On March 28, 2002, Storms was quoted by the St. Petersburg Times as saying "she may try again to hit the station in the pocketbook if she makes no headway with (State Attorney Mark) Ober." (Complaint, ¶49). On April 1, 2002, Storms held a news conference where she stated that nothing in the constitution required the government to fund public access. (Complaint, ¶51). According to an April 2, 2002, article in the St. Petersburg Times, Storms indicated her intent to ask her fellow commissioners to cancel the contract with Speak Up. She went on to claim that the "Happy Show" was obscene, and stated "they didn't get Al Capone for murder or racketeering, they got him for tax evasion." Id.
Commissioner Stacey Easterling also joined the public debate. An April 8, 2002, article in the St. Petersburg Times states: "Easterling said she doesn't think the county should be enabling obscene programming. 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." (Complaint, ¶58). In a May 18, 2002, letter to constituents addressing the public access controversy, Easterling states: "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." Plaintiffs' Complaint also references numerous other statements by individual commissioners regarding the "obscenity," "pornography" and "vulgarity" aired on public access television.
On April 5, 2002, Speak Up was notified by the County Attorney that the County considered Speak Up to be in breach of the Contract and intended to terminate the Contract in ninety days unless Speak Up cured the alleged breaches to the County's satisfaction. (Complaint, exhibit 20). Specifically, the County alleged that Speak Up failed to enforce policies requiring content advisories and failed to obtain releases from individuals appearing on the broadcasts. Id.
On July 24, 2002, Speak Up delivered a "Proposal for Cure" to the County Attorney's office addressing the alleged contractual breaches identified by the BOCC. (Complaint, exhibit 31). Although Speak Up did not admit to any breach of contract, it proposed to cure the alleged breach by: 1) implementing a program in 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 and content of the programs; 2) providing adult content advisories before, during, and after all "mature audience" programming; 3) providing mandatory training for producers concerning basic intellectual property legal issues; and 4) randomly auditing programming for compliance with policies and procedures. (Complaint, ¶ 66).
On July 24, 2002, BOCC considered the "Proposal for Cure" for the alleged breach of the Contract. (Complaint, ¶67). After a discussion on the funding of Speak Up, the BOCC voted to approve the "Proposal for Cure."(Complaint, ¶69) Commissioner Norman then asked that the Contract be "flagged" for discussion at the BOCC budget meeting to occur one week later, on August 1, 2002. Id. In reaction to Norman's suggestion, the County Attorney stated "Commissioners, I would advise you 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 agreement for the budget meeting. Id.
One week later, at the August 1, 2002, budget reconciliation workshop, the Commissioners voted four to three to "de-fund" Speak Up for 2003. (Complaint, ¶70) On September 19, 2002, the BOCC had their final public hearing on the budget for fiscal year 2002, and voted five to one to accept a final version of the budget which provided no reallocation for funding Speak Up under its Contract with the County. (Complaint, ¶ 73). Plaintiffs contend that the County's act of "de-funding" Speak Up is a pretext for censorship in violation of the First Amendment to the United States Constitution.
LEGAL ANALYSIS
Courts are reluctant to interfere in the legislative process. As the Supreme Court has explained, the judiciary may not restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. McCray v. United States, 195 U.S. 27, 56 (1904). The judiciary takes care to not involve itself in purely legislative matters, and "[t]he fact finding process of legislative bodies is generally entitled to a presumption of regularity and deferential review by the judiciary." City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
It is also clear, under the numerous cases cited to this Court by both Plaintiffs and Defendants, that the Courts have a duty to review laws and legislative acts when their constitutionality is questioned. Here, Plaintiffs contend that the action taken by BOCC and Hillsborough County is a pretext for censorship, and violates Plaintiffs' First Amendment rights. Plaintiffs ask this Court to issue a preliminary injunction preserving funding for Speak Up, until the merits of this action are decided.
In order to obtain a preliminary injunction, Plaintiffs must show: 1) substantial likelihood of success on the merits; 2) irreparable injury will be suffered unless the injunction issues; 3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 4) if issued, the injunction would not be adverse to the public interest. McDonald's Corp. v. Robertson , 147 F. 3d 1301, 1306 (11th Cir. 1998); Fed.R.Civ.P. 65.
I. Substantial Likelihood of Success on the Merits
Plaintiffs urge the Court to evaluate the instant case under the framework presented in Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996). The Umbehr case involved an independent contractor who claimed his contract was terminated in retaliation for exercise of his First Amendment rights. The Supreme Court held that government contractors are protected by the First Amendment from termination in retaliation for exercise of freedom of speech. Id. at 2344. According to Umbehr, a First Amendment violation occurs where: 1) an independent contractor, 2) with a pre-existing commercial relationship with the government, 3) is terminated by the government in retaliation for protected speech activities. Id. Plaintiffs argue that the Umbehr analysis is applicable in the present case, based on Speak Up's status as an independent contractor, and the County's decision to terminate the Contract.
Defendants assert that the proper analysis for reviewing legislative action of government entities is set forth in O'Brien v. United States, 391 U.S. 367 (1968), and that the Court should apply the O'Brien framework to the present action. In O'Brien, the Court found that a law prohibiting willful destruction of draft cards did not violate First Amendment freedom of expression. Id. at 385. The Court held that it was not appropriate for courts to strike down otherwise constitutional statutes on the basis of an alleged illicit legislative motive. Id. at 383. If considered under the O'Brien test, the BOCC's legislative action would have to meet the following four criteria to be considered constitutional: 1) the regulation is within the power of the government to enact, 2) the regulation furthers a substantial or important governmental interest, 3) the government's interest is unrelated to the suppression of free expression, and 4) the restriction on expression is no greater than necessary. Id. at 377.
The Court notes at the outset that it is debatable whether a legislative body can control the framework of the Court's analysis by changing the title of the legislative session during which a particular action is taken. But, it is unnecessary for the Court to decide this issue for two reasons. First, having reviewed the briefs of the parties and the relevant case law, the Court concludes that Plaintiffs have a reasonable chance of success on the merits regardless of which framework is applied. Under Umbehr, if Speak Up is considered an independent contractor, the Court may review the BOCC's decision to terminate Speak Up to determine whether it was made in retaliation for protected speech activities. Even if the Court adopts Defendants' favored analysis, the Court must still determine whether the government's interest is unrelated to the suppression of free expression. While it may be correct that the constitution does not require the government to fund public access, it is clear that once a public forum is created, it may only be eliminated in a manner consistent with the First Amendment. See Missouri Knight of the Ku Klux Klan v. Kansas City, 723 F.Supp. 1347 (W.D. Mo. 1989); U.S. Const. amend. I.
Second, under the case of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), which was decided more recently than O'Brien, the Supreme Court makes it clear that the motive behind a decision of a legislative body must be reviewed by the courts if sufficient evidence of discriminatory purpose exists: "[w]hen there is proof that a discriminatory purpose has been a motivating factor in the decision , judicial deference is no longer justified." Id. at 563. According to the Court, "[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 564.
The sworn allegations set forth in the Complaint are sufficient to show a likelihood of success under either the Umbehr or O'Brien standard of analysis. Accordingly, the Court finds that the Plaintiffs satisfy the first necessary element for obtaining a preliminary injunction.
II. Irreparable Harm
The threatened injury in the instant action is the loss of funding for Speak Up Tampa Bay and the attendant loss of First Amendment freedom. Speak Up asserts that, if the funding from BOCC is not provided, it will be forced to "go dark" and discontinue its service to greater Hillsborough County. The Supreme Court has stated that "the loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
Defendants argue that Plaintiffs can seek funding from alternative sources, and that BOCC is not responsible for any loss of First Amendment freedoms which may have occurred. A similar argument was asserted by the defendant in the recent case of Brooklyn Inst. of Arts and Sciences v. City of New York, 64 F. Supp.2d 184, 197 (E.D. N.Y. 1999). In Brooklyn, the district court rejected New York's claim that the plaintiff could not establish irreparable injury unless it showed the withholding of funding prevented it from showing the exhibit in question. Id. According to the court, "these arguments ignore the very reason that interference with First Amendment rights constitutes irreparable injury." Id. This Court agrees, and finds that the Plaintiffs have demonstrated irreparable injury by virtue of the threat of closure and the loss of First Amendment freedoms.
III. The Threatened Injury to the Movant Outweighs
Whatever Damage the Proposed Injunction
May Cause to the Opposing Party
Should the Court issue a preliminary injunction, Defendants will be required to continue funding Speak Up until a decision on the merits of Plaintiffs' claim is reached. At this stage, the Court has considered the financial impact that such a requirement will place on the County, and has considered the County's overall budget and its capacity to continue to fund Speak Up. Speak Up was originally budgeted for approximately $355,444, for each of the fiscal years 2002 and 2003. At the August 1, 2002, budget reconciliation workshop, where BOCC voted to terminate funding for Speak Up, the BOCC also voted to lower County taxes used to fund public access. Additionally, BOCC maintained funding for the educational cable channel, and increased funding for the government access television channel by $335,760.
Additionally, Hillsborough County maintains over $3,000,000 in its contingency reserve account. While the Court does not take lightly the act of requiring the County to utilize some of the contingency reserve account or re-appropriate monies from other sources from within the County budget in order to fund Speak Up during the term of an injunction, it is also apparent that the County has adequate resources to do so. The Court finds that the imminent harm of closing the public access channel and the potential loss of First Amendment freedom outweighs the budgetary impact to Hillsborough County.
IV. Would the Injunction Be Adverse to the Public Interest?
Defendants assert that the public has an interest in protecting the right and duty of its elected officials to make budgetary decisions based upon the legislative process established by state law. The Court agrees. However, the Court does not find that issuing a preliminary injunction in this specific case would undermine the BOCC's freedom to make budgetary decisions. The Court finds that the community's interest in protection of First Amendment freedom outweighs the public interests asserted by Defendant. If it is determined that the legislative act in question was improper and unconstitutional, then the Court is required to provide some avenue of relief.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiffs' Motion for Preliminary Injunction (Dkt. #4) is GRANTED. BOCC is enjoined from terminating funding due to Speak Up under the terms of the parties' management agreement, and from replacing Speak Up with any other entity as manager of the public access center and as programmer for public access cable television channel 20 until an adjudication on the merits of Plaintiffs' claim is reached.
In light of this Order, the Court will consider an expedited trial of the merits in this case. The parties may jointly submit a proposed case management order within fifteen (15) days of the date of this Order. Prior to a trial, however, the parties will be required to mediate this matter.
DONE and ORDERED in Tampa, Florida on this12th day of November, 2002, at 3:50 p.m.
_____________________________________
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE
