Barnstone v. University of Houston

• Decision Date: 18 December 1980
• Docket Number: Civ. A. No. H-80-1048.
• Citation: Barnstone v. University of Houston, 514 F.Supp. 670 (S.D. Tex. 1980)
• Parties: Gertrude BARNSTONE, and Harvey Malyn, Plaintiffs, v. The UNIVERSITY OF HOUSTON, KUHT-TV, and Patrick J. Nicholson, in his individual and representative capacity as University of Houston Systems Vice President, Defendants.
• Court: U.S. District Court — Southern District of Texas

514 F. Supp. 670

Gertrude BARNSTONE, and Harvey Malyn, Plaintiffs, v. The UNIVERSITY OF HOUSTON, KUHT-TV, and Patrick J. Nicholson, in his individual and representative capacity as University of Houston Systems Vice President, Defendants.

Civ. A. No. H-80-1048.

United States District Court, S. D. Texas, Houston Division.

December 18, 1980.

David H. Berg, David H. Berg & Associates, Houston, Tex., for plaintiffs.

L. Gregory Wilson, Austin, Tex., Pat Bailey, University of Houston, Houston, Tex., for defendants.

Raymond L. Kalmans, Neel, Hopper & Kalmans, Houston, Tex., for Public Broadcasting amicus curiae.

MEMORANDUM AND ORDER

McDONALD, District Judge.

INTRODUCTION

This action challenges the decision of the University of Houston not to air the controversial program, "Death of a Princess," as previously scheduled on its public television station, KUHT-TV. The plaintiffs contend that the decision by Dr. Patrick J. Nicholson, Vice President for Public Information and University Relations of the University of Houston, not to telecast "Death of a Princess" on KUHT-TV, the public television station owned and operated by the University, on Monday, May 12, 1980, at 8:00 p. m., deprived them of their constitutional rights under the First and Fourteenth Amendments. The defendants, Dr. Nicholson, the University of Houston, and KUHT-TV, deny that the plaintiffs' constitutional rights were violated and raise several procedural objections.

The present case was originally filed by plaintiff Gertrude Barnstone on Thursday, May 8, 1980. The following day, May 9, 1980, after a full hearing in which all the parties were ably represented, the Court granted the plaintiff's request for a temporary restraining order. A written order was entered, supplemented the morning of May 12, 1980, compelling the defendants to telecast "Death of a Princess" at its originally scheduled time and date. On the afternoon of May 12, 1980, the date that "Death of a Princess" was originally scheduled and subsequently ordered to be shown by this Court, the United States Court of Appeals for the Fifth Circuit, on the "condition that the Defendants ... tape and preserve the program in issue herein," vacated the temporary restraining order entered by this Court. The University of Houston v. Barnstone, No. 80-1527 (5th Cir. May 12, 1980). That evening, prior to 8:00 p. m., United States Supreme Court Justice Powell, Circuit Justice for the Fifth Circuit, denied the plaintiff's motion to stay the order entered by the Fifth Circuit. Barnstone v. University of Houston, 446 U.S. 1318, 100 S.Ct. 2144, 64 L.Ed.2d 488 (1980). Thus, in accordance with Dr. Nicholson's earlier decision, "Death of a Princess" was not shown on KUHT-TV, although it was taped and preserved as directed by the Fifth Circuit.

Both the plaintiff and the defendants subsequently moved for summary judgment. The voluminous memoranda filed by the parties were supplemented by an equally extensive brief filed by the Public Broadcasting Service, which was granted leave by this Court to participate as amicus curiae. The Public Broadcasting Service (PBS), of which KUHT-TV is a member, distributed "Death of a Princess." Because significant material facts were still in dispute, see Fed. R.Civ.P. 56(c), and because the Fifth Circuit's action of May 12, 1980, was viewed by the Court as conveying the desirability of the development of a full factual record, the motions for summary judgment were denied. Harvey A. Malyn was granted leave to join this action as a party-plaintiff and trial was set for August 19, 1980.

The trial and oral arguments took the better part of three full days, concluding late in the afternoon on August 21, 1980. Since that time, supplemental memoranda have been filed by both sides. The Court has now had an opportunity to fully review the facts, the law, and the arguments of the parties. In accordance with that review, it finds that the decision not to show "Death of a Princess" on KUHT-TV at 8:00 p. m. on May 12, 1980, deprived plaintiffs Barnstone and Malyn of the rights guaranteed to them by the First and Fourteenth Amendments to the Constitution of the United States.

THE FACTUAL SETTING

The University of Houston is a co-educational institution of higher learning operating under the authority of Texas law. See Tex.Educ.Code Ann. §§ 111.01 et seq. (Vernon). The control of the University is vested in a Board of Regents, id. at § 111.11, whose members are appointed by the Governor with the advice and consent of the Senate. Id. at § 111.12. Approximately 50 percent of the University's operating budget comes directly from the State of Texas' general revenue funds.

One of the activities conducted by the University of Houston is the operation of KUHT-TV, a noncommercial educational television station licensed to it by the Federal Communications Commission under the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended. KUHT-TV obtains its power from the University of Houston and is housed in a building maintained by the University and located on the campus. Approximately 60 percent of KUHT-TV's annual budget of $2.7 million dollars in the coming year consists of public funds from the Association for Community Television (ACT). About 12 percent of its budget is derived from state funds obtained from the Gulf Regional Educational Television Affiliate (GRETA) for the broadcasting services provided to local school districts during the school year. The remainder of its funds come from federal community service grants. The parties have stipulated that both the University of Houston and KUHT-TV constitute "governmental entities" for the purpose of First Amendment analysis. See Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (hereinafter referred to as CBS v. DNC).

As a member of PBS, KUHT-TV participates in the Station Program Cooperative (SPC). This program, described as a "unique concept in program selection and financing for public television stations," Accuracy in Media, Inc. v. Federal Communications Commission, 521 F.2d 288, 292 n.14 (D.C.Cir.1975), was introduced to give local public television stations more control over the content of the programs shown in the national public television broadcasting system. Blakely, To Serve the Public Interest 206 (1979). The SPC works in the following manner. Producers or production companies that have a program or series they want to offer to a public television station contact PBS. They advise PBS what the program or series is about and the price the station must pay to obtain the rights to broadcast it. PBS then makes a catalogue, summarizing this information, which it distributes to its member stations. By negative or affirmative vote, each station indicates whether it is willing to pay its portion of the cost of purchasing the rights to broadcast the program or series. If enough stations vote to share the costs, PBS purchases the rights to broadcast the program or series, schedules it, publicizes it, and distributes it to its member stations for broadcasting. The stations that refuse to contribute to the costs of purchasing the rights to the program or series are prohibited from televising it. The stations that agree to share the costs of obtaining the rights to the program or series are free to broadcast or not broadcast the project as they wish. See, Memorandum of Amicus Public Broadcasting Service in Support of Defendants, at 3 (hereinafter referred to as Brief of PBS); The Broadcast Industry 203 (R. Stanley, ed. 1975); Accuracy in Media, supra.

This latter provision, e. g., that stations which voted and paid to obtain the show are still free to refuse to show it, stems not only from PBS's "Station User's Agreement," Brief of PBS, at 4, but from the regulatory structure established by Congress in the Communications Act of 1934 and the Public Broadcasting Act of 1967, 47 U.S.C. §§ 390-399, since amended. See CBS v. DNC, supra, 412 U.S. at 116, 93 S.Ct. at 2093; Federal Communications Commission v. Midwest Video Corporation, 440 U.S. 689, 704-705, 99 S.Ct. 1435, 1443-1444, 59 L.Ed.2d 692 (1979); S.Rep.No.222, 90th Cong., 1st Sess. 14-14, reprinted in 1967 U.S.Code Cong. & Ad.News 1772, 1794. See also 47 C.F.R. § 73.658(e).

Sometime prior to May, 1980, PBS sent an SPC catalogue to KUHT-TV. After reviewing the catalogue, KUHT-TV, by affirmative vote, like 144 other public television licensees, agreed to share in the costs of obtaining the rights to televise a thirteen-program series entitled "World." Brief of PBS, at 3. The series was obtained and distributed by PBS and aired regularly by KUHT-TV. One of the programs in the series, produced jointly by WGBH Educational Foundation, licensee of noncommercial educational television station WGBH-TV in Boston, Massachusetts, and ATV Network of London, England, was entitled "Death of a Princess." Id. at 2. A documentary re-creation of the events surrounding the execution of a Saudi Arabian princess and her lover by the Saudi Arabian government, "Death of a Princess" was scheduled for distribution by PBS on Monday, May 12, 1980, at 8:00 p. m. KUHT-TV announced in its monthly program schedule, "The Public Times," (Plaintiffs' Exhibit 4) that it would televise the program at that time. During the second week in April, 1980, however, PBS alerted KUHT-TV and its other member stations, pursuant to its previously established policy, to the fact that "Death of a Princess" contained what it referred to as "controversial material."

The President of the University of Houston, Dr. Charles E. Bishop, and the Board of Regents of the University had delegated full responsibility for the operation of KUHT-TV, as well as KUHT radio, to Dr. Patrick J. Nicholson, the Vice President for Public Information and University Relations and a defendant in this case.¹ Dr. Nicholson, in turn, had delegated full responsibility for...