Coplin v. Fairfield Public Access Television Committee

• Decision Date: 30 April 1997
• Docket Number: No. 96-2026,96-2026
• Parties: 25 Media L. Rep. 1737 Jay R. COPLIN, Appellant, v. FAIRFIELD PUBLIC ACCESS TELEVISION COMMITTEE; Robert Glocke, Chairman, FPATV Committee; Allen Glonek, FPATV Committee member; Susan Kessel, FPATV Committee member; Paul Stokstad, FPATV Committee member; Robert Gates, FPATV Committee member; Lewis Wilson, II, FPATV Station Manager; City of Fairfield, Iowa; Robert Rasmussen, as Mayor; Ed Malloy, member of City Council; Jay Silverman, member of City Council; Philip Young, member of City Council; Joe Frakes, member of City Council; Richard Schneider, member of City Council; Jeff Harris, member of City Council; Mary Louise Sutherlin, member of City Council, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1395

111 F.3d 1395

25 Media L. Rep. 1737

Jay R. COPLIN, Appellant, v. FAIRFIELD PUBLIC ACCESS TELEVISION COMMITTEE; Robert

Glocke, Chairman, FPATV Committee; Allen Glonek, FPATV

Committee member; Susan Kessel, FPATV Committee member;

Paul Stokstad, FPATV Committee member; Robert Gates, FPATV

Committee member; Lewis Wilson, II, FPATV Station Manager;

City of Fairfield, Iowa; Robert Rasmussen, as Mayor; Ed

Malloy, member of City Council; Jay Silverman, member of

City Council; Philip Young, member of City Council; Joe

Frakes, member of City Council; Richard Schneider, member

of City Council; Jeff Harris, member of City Council; Mary

Louise Sutherlin, member of City Council, Appellees.

No. 96-2026.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1996.

Decided April 30, 1997.

Jonathan J. Frankel, argued, Washington, DC (Samir Jain, on the brief), for appellant.

Hugh James Cain, argued, Des Moines, IA (James C. Huber and Deborarh M. Stein, on the brief for City of Fairfield and Fairfield City Council Members), for appellees.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Randy Coplin brought this action under 42 U.S.C. § 1983 (1994) against the Fairfield Public Access Television Committee (FPATV Committee) and members of the Fairfield, Iowa City Council (Council) for alleged violations of Coplin's rights under the First Amendment and the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-559 (1994 & Supp. I 1995). Coplin seeks injunctive relief, declaratory relief, monetary damages, and attorney's fees. The district court bifurcated the proceedings; the issues on which Coplin sought injunctive and declaratory relief were to be presented in a bench trial while the monetary damages and attorney's fees claims were to be heard, if necessary, in a jury trial. Upon cross-motions for summary judgment in the bench trial, the district court ¹ granted summary judgment to the FPATV Committee and the Council, dismissing Coplin's claims for injunctive and declaratory relief. The district court also held that 47 U.S.C. § 555a(a) (1994) precludes Coplin from recovering monetary damages and attorney's fees. We affirm in part, reverse in part, and remand.

I.

The FPATV Committee is a regulatory and advisory board created by the Council. The primary responsibility of the FPATV Committee is to supervise, manage, and control the activities of the Fairfield Public Access Television channel (FPATV). To fulfill its responsibility, the FPATV Committee promulgated the "Fairfield Public Access TV Rules, Regulations and Guidelines" (FPATV Rules). Under FPATV Rule I(A), "[t]he Fairfield Public Access TV (FPATV) facilities and cablecasting on Fairfield's Public Access TV channel are available to any resident of the City of Fairfield and its surrounding cable broadcast areas." FPATV Rule I(A), reprinted in J.A. at 340.

In May 1993, Coplin began producing and hosting a regularly scheduled talk show entitled Fairfield Speaks that he cablecast over FPATV. The show featured interviews with community leaders in government, business, and education as well as coverage of community events and movie reviews. Coplin opened each show by displaying and reading a disclaimer, required by FPATV rules, that informed the public that FPATV was not responsible for the content of Coplin's program.

In 1994, a local newspaper columnist, Marni Mellen, wrote an editorial critical of Coplin. In response, Coplin cablecast a segment on his September 26, 1994 show satirizing Mellen's views. During the segment, a woman allegedly pulled up her blouse and exposed her brassiere to the television camera. In October 1994, the Council and the FPATV Committee passed a resolution declaring the brassiere incident objectionable, and Coplin received a formal "Objectionable Content Warning" shortly thereafter. The letter warned Coplin that "if similar incidents occur in your future productions[,] you may [be] subject to sanctions by the FPATV Committee. These sanctions may include disallowing your use of FPATV." Letter from Lewis Wilson II, Manager of FPATV (Oct. 9, 1994) at 1, reprinted in J.A. at 157.

Before the warning was thirty days old, Coplin included, on his October 23, 1994 show, a one hour-long, live call-in segment in which he invited members of his viewing audience to respond by telephone to the University of Chicago's "Sex in America" survey, the results of which had recently been published by Time magazine. See Philip Elmer-Dewitt, Now for the Truth about Americans and Sex, Time, Oct. 17, 1994, at 62, reprinted in J.A. at 192. The segment was co-hosted by Patti Schneider, a woman who also produced her own show on FPATV. During the segment, Coplin was dressed in a Halloween costume, including a mask and a wig.

Before any viewers called in, Coplin displayed and read a sign warning that "Fairfield is participating in a sex survey, please be discreet and candid in your responses." Fairfield Speaks Tr. (Oct. 24, 1995) at 2, reprinted in J.A. at 160. Coplin then turned to the Time article. Reading a question from the article, Coplin asked viewers if they had " 'the nagging suspicion that in bedrooms across the country, on kitchen tables, in limos and other venues too scintillating to mention, other folks are having more sex, livelier sex and better sex.' " Id. (quoting Elmer-Dewitt, Now for the Truth about Americans and Sex, at 62, reprinted in J.A. at 192). He then started taking callers on the air. The calls were cablecast live with no delay.

One caller, named Lyle, who claimed to live in a trailer park, responded to the question by reporting that "I have that suspicion that other people are having more sex, because my neighbor, I look at their window and I see them going at it all the time." Id. at 5, reprinted in J.A. at 163. With prompting from Coplin, Lyle then revealed the exact address of his neighbor's residence (Trailer Park Residence). Id. at 6, reprinted in J.A. at 164. It was later learned that this residence actually does exist. During this exchange, Lyle spoke in an accent that he claimed was Irish, yet he also claimed that he was from Italy. See id. at 7-8, reprinted in J.A. at 165-66.

The next caller objected to the content of the segment, arguing that "this is certainly not in very good taste." Id. at 11, reprinted in J.A. at 169. Coplin and his co-host then engaged the caller in a discussion about the types of programming that he would prefer. After the call was completed, Coplin and his co-host questioned whether the complaining caller might be "someone on the board." Id. at 12, reprinted in J.A. at 170. Although never revealed on the air, it was later learned that the caller was in fact the husband of an FPATV Committee board member.

The following caller identified himself only as "Backyard." Backyard conjectured that the complaining caller did not like the segment "cause he don't get no sex." Id. He further suggested that the complaining caller was "probably doing the five knuckle shuffle on the old fist pump right now, anyway." Id.

Several callers later, a man identifying himself as "Gordo" bragged: "I get as much sex as I need." Id. at 25, reprinted in J.A. at 183. He claimed to live on the Harrison part of Second Street in Fairfield. Gordo opined that "[i]f you live there, you'll get more sex than you'll ever need." Id. When asked if the sex on Second Street was "premarital sex, marital sex or extramarital sex," Gordo responded: "Every kind you can think of." Id. at 26, reprinted in J.A. at 184. He then proceeded to identify a particular house on Second Street (Second Street Residence) by giving its address. It was later learned that this residence exists and was occupied at the time. Gordo reported that "[t]here's this green truck that comes there and stays ... until four in the morning." Id. Gordo also reported that the truck comes "[a]round lunch time" to which Coplin responded: "Well, kind of a nooner, huh?" Id.

The final caller claimed that he lived in the same neighborhood as Lyle, the earlier caller allegedly from Italy who spoke in an Irish brogue. With Coplin's encouragement, the final caller confirmed that the occupants of the Trailer Park Residence "go at it all night and day." Id. at 28, reprinted in J.A. at 186. The final caller, like Lyle, gave the address of the residence.

On October 27, 1994, the FPATV Committee convened one of its regularly scheduled meetings and voted to ban Coplin from producing his show, appearing on any other FPATV show, and using FPATV facilities. Coplin was informed of this decision in a letter dated October 31, 1994. In the letter, the FPATV Committee also explained that they were taking disciplinary action because of the content of Coplin's programs. See Letter from Lewis Wilson II, Manager of FPATV (Oct. 31, 1994) at 1, reprinted in J.A. at 201 (barring Coplin from FPATV for "the illegal acts of: 1. Invasion of personal privacy. 2. Having content which is, libelous, slanderous, or defamatory either to individuals, families, or organizations"). On November 3, 1994, Coplin received a letter from Fairfield City Attorney, John Morrissey, clarifying the October 31 letter. Morrissey explained that the October 31 letter was only a preliminary determination and that Coplin had a right to a hearing before the FPATV Committee under Article V(C)(1) of the FPATV Rules. Letter from John Morrissey (Nov. 2, 1994) at 1-2, reprinted in J.A. at 211-12.

Coplin appealed the decision on November 10, 1994, and the FPATV Committee set a hearing for December 1, 1994. At the hearing, Coplin responded to the FPATV Committee's allegations. FPATV Committee members then introduced additional allegations during the latter part of the meeting, but Coplin was not allowed to respond to these allegations. The meeting was continued until December 7, 1994, so that the new allegations could be more fully discussed. Coplin attended the second meeting, but...