Combined Communications Corp. v. Finesilver
| Decision Date | 17 March 1982 |
| Docket Number | No. 81-2279,81-2279 |
| Citation | 672 F.2d 818 |
| Parties | 8 Media L. Rep. 1233 COMBINED COMMUNICATIONS CORPORATION, d/b/a KBTV Broadcasting, Inc., Petitioner, v. Honorable Sherman G. FINESILVER, United States District Judge, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard P. Holme, Denver, Colo. (Andrew M. Low, Denver, Colo., with him on the brief), Davis, Graham & Stubbs, Denver, Colo., for petitioner.
William C. McClearn, Denver, Colo. (Peter C. Houtsma and Maureen E. Reidy, Denver, Colo., with him on the brief), Holland & Hart, Denver, Colo., for respondent.
Before DOYLE, BREITENSTEIN and SEYMOUR, Circuit Judges.
Petitioner Combined Communications Corporation, d/b/a KBTV Broadcasting, Inc. (KBTV), seeks a writ of mandamus requiring a district judge to allow television broadcast coverage of negotiations undertaken in a Federal courthouse to settle a lawsuit. We deny the petition.
As a result of the 1980 census, the number of members the State of Colorado may elect to the United States House of Representatives increased from five to six. Three redistricting plans formulated by the Colorado General Assembly to create six Congressional districts were vetoed by Governor Richard Lamm. Thereafter, five registered voters brought suit against the governor and other state officials requesting that a three-judge court be appointed to formulate its own redistricting plan in time for the 1982 Congressional election.
The case was assigned to respondent Judge Finesilver who ordered the governor and members of the legislature to attempt to work out a compromise plan. Pursuant to that order, the negotiators were directed to report their progress to the court at 7:30 a.m. on November 6, 1981, and "(i)n the event no compromise is forthcoming, the parties are to be prepared to spend the entire day, if necessary, in meetings in a designated room of the United States Courthouse to continue discussions on this matter." Oct. 29, 1981 Order at 2. When the negotiators reported the lack of progress at the appointed time, they were directed to a jury room and ordered to continue their efforts. Later in the day, negotiations continued in a magistrate's courtroom. The negotiations were unsuccessful, no other meetings were held, and the matter went to trial December 3, 1981.
The trial court permitted the press to be present during the negotiations held in the courthouse. However, it denied KBTV's request that television cameras be allowed in the meeting rooms, citing a court rule prohibiting such cameras in the courthouse. 1 This denial is the subject of KBTV's mandamus action. KBTV contends that the district court's ruling violated KBTV's First Amendment right of access to news of the operation and activities of government and the Colorado Open Meetings Law, Colo.Rev.Stat. § 24-6-401 et seq. On the other hand, respondent argues that KBTV lacks standing, that the issue is moot, and that the ruling did not violate either the First Amendment or the Colorado statute.
In order to have standing, KBTV must allegedly be injured in fact with respect to an interest within the zone of protection of the Constitution or a statute. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-54, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). KBTV has arguably suffered an injury regarding its ability to report the news that is within the protection of the First Amendment. See Cable News Network, Inc. v. American Broadcasting Co., 518 F.Supp. 1238, 1244-45 (N.D.Ga.1981). Accordingly, KBTV's standing to assert its claims is established. See United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978).
Whether KBTV's claims are moot is a closer question. An issue will not be considered moot although the controversy generating it has dissolved if two conditions are present: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Napier v. Gertrude, 542 F.2d 825, 826 (10th Cir. 1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977).
Respondent concedes that the first requirement is present. However, he argues that the circumstances giving rise to this case are so unique that no reasonable expectation of repetition exists. Respondent's burden on this issue is a heavy one. United States v. W. T. Grant & Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). KBTV contends that statutorily open meetings may well be held again in the federal courthouse and its television cameras subsequently barred under the court's ruling. This possibility is not so remote and speculative that the controversy must be considered moot. See, e.g., Gannett Co. v. De Pasquale, 443 U.S. 368, 377-78, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979).
KBTV contends that the court's ruling violated both its First Amendment right to gather news and the Colorado Open Meetings Law. The interrelation of the media, the First Amendment, and the courts' duty to provide a suitable environment for judicial proceedings has generated considerable controversy. Although many issues remain unsettled, some principles have emerged. The First Amendment does not guarantee the media a constitutional right to televise inside a courthouse. See Gannett Co. v. De Pasquale, 443 U.S. at 381, 99 S.Ct. at 2906; Estes v. Texas, 381 U.S. 532, 539-40, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543 (1965). Within the courthouse, " 'a reporter's constitutional rights are no greater than those of any other member of the public.' " Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1317, 55 L.Ed.2d 570 (1978) (quoting Estes, 381 U.S. at 589, 85 S.Ct. at 1663 (Harlan, J., concurring)). "(T)he courtroom and courthouse premises are subject to the control of the court." Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1519, 16 L.Ed.2d 600 (1966), and courts may impose restrictions upon...
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