Cruz v. Ferre, 83-5588

• Decision Date: 22 March 1985
• Docket Number: No. 83-5588,83-5588
• Citation: 755 F.2d 1415
• Parties: Ruben CRUZ, Plaintiff-Appellee, Home Box Office, Intervenor-Appellee, v. Maurice A. FERRE, etc., Howard Gary, etc., the City of Miami, Fl., etc., Defendants-Appellants, Americable of Greater Miami, Ltd., et al., Intervenors.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1415

755 F.2d 1415

Ruben CRUZ, Plaintiff-Appellee, Home Box Office, Intervenor-Appellee, v. Maurice A. FERRE, etc., Howard Gary, etc., the City of

Miami, Fl., etc., Defendants-Appellants,

Americable of Greater Miami, Ltd., et al., Intervenors.

No. 83-5588.

United States Court of Appeals, Eleventh Circuit.

March 22, 1985.

Gisela Cardonne, Asst. City Atty., Miami, Fla., for defendants-appellants.

Charles A. Hobbs, Hobbs, Straus, Dean & Wilder, Washington, D.C., for amicus curiae, State of Utah.

Ellis Rubin, Miami, Fla., for plaintiff-appellee.

Frates, Bienstock & Sheehe, Terry S. Bienstock, Miami, Fla., Faith Wender, Los Angeles, Cal., George Shapiro, Washington, D.C., for Home Box.

William M. Grodnick, Myers, Kenin, Levinson, Ruffner, Frank & Richards, Miami, Fla., for Miami Cablevision.

Michael R. Klipper, MPAA, Inc., New York City, Tench C. Coxe, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for Motion Picture Assn. of America, Inc., amicus curiae.

Robert St. John Roper, Washington, D.C., for National Cable Television Assn., Inc., amicus curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and CLARK, Circuit Judges, and STAFFORD ^*, District Judge.

STAFFORD, District Judge:

This cause involves a challenge to the constitutionality of a Miami ordinance regulating the distribution of obscene and indecent material through cable television. The district court found the provisions of the ordinance regulating the distribution of "indecent material" constitutionally overbroad. Additionally, the district judge held that the ordinance "violate[s] the notion of fairness implicit in one's right to due process of law." Cruz v. Ferre, 571 F.Supp. 125, 126 (S.D.Fla.1983). We affirm on both first amendment and due process grounds.

FACTS AND PROCEDURAL HISTORY

City of Miami Ordinance No. 9223, adopted on October 19, 1981, sets forth the overall system for regulating cable television in the City of Miami. On November 19, 1981, the city enacted Ordinance No. 9332, granting Miami Cablevision ("Cablevision"), a joint venture of Americable of Greater Miami, Inc., and Miami Telecommunications, Inc., a nonexclusive, revocable license to operate a cable television system in Miami.

On January 13, 1983, the city enacted a third cable ordinance, Ordinance No. 9538. This ordinance, which is the subject of this Section 1. No person shall by means of a cable television system knowingly distribute by wire or cable any obscene or indecent material.

lawsuit, is intended to regulate "indecent" and "obscene" material on cable television. The relevant portions of this ordinance provide:

Section 2. The following words have the following meanings:

....

(f) The test of whether or not material is "obscene" is: (i) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

(g) "Indecent material" means material which is a representation or description of a human sexual or excretory organ or function which the average person, applying contemporary community standards, would find to be patently offensive.

Additionally, section 3 of the ordinance provides procedures for complaints alleging violations of the ordinance to be brought. The city manager is to receive all complaints of alleged violations. Ordinance No. 9538, sec. 3(a). Furthermore, the city manager is empowered to initiate such claims himself. Id. All complaints, whether received or initiated by the city manager, are to be reviewed by him to determine whether there is probable cause to believe that a violation has been committed. Id. sec. 3(b). If the city manager determines that such probable cause exists, he must give written notice of the alleged violation to the licensee. The notice must specify the nature of the alleged violation and the date, time, and place of the hearing to be conducted by the city manager. Id. sec. 3(c). At the hearing, which is to be "informal," the licensee may be represented by counsel and may present evidence and cross-examine witnesses; the proceedings are to be transcribed by a court reporter. Id. sec. 3(d). The city manager presides over the hearing and governs the admissibility of evidence. Id. sec. 3(e). The burden of proof (a preponderance of the evidence) is on the city, which is represented by the city attorney or his designee. Id. sec. 3(f). Within ten days after the conclusion of the hearing, the city manager is to make his written findings and decision, including the nature and extent of any sanctions imposed and the reasons therefore. Id. sec. 3(h). The only sanctions provided in the ordinance are suspension of the license for a period of time not to exceed nine days, or termination of the license. Id. sec. 3(i).

This action for declaratory and injunctive relief was filed in February 1983 against appellants, the City of Miami, its mayor, and its city manager. Plaintiff-appellee Ruben Cruz is a Cablevision subscriber. The complaint sought a judgment declaring the ordinance void on its face and an injunction restraining the enforcement of the ordinance. Appellee Home Box Office, Inc. ("HBO") was permitted to intervene as a plaintiff. Cablevision was granted leave to intervene as a defendant and later moved to withdraw, but its motion was denied. Cablevision did not take a position in the lower court and has not participated in this appeal.

Because the facts of this case were not in substantial dispute, all parties filed motions for summary judgment. Plaintiffs also filed motions for preliminary and permanent injunctions. After holding two hearings on the issues presented, the district judge granted plaintiffs' motions on August 2, 1983. The city was permanently enjoined from enforcing sections 1 and 2(g) of Ordinance No. 9538, which regulate "indecent material" on cable television. The court also enjoined the city from implementing the enforcement procedures provided for in section 3 of the ordinance.

Appellants challenge the district court's resolution of the first amendment and due

                process issues. 1   An amicus curiae brief urging reversal has been filed by the State of Utah.  Amicus curiae briefs urging affirmance have been filed by the National Cable Television Association, Inc., and the Motion Picture Association of America, Inc
                

FIRST AMENDMENT

The United States Supreme Court has long recognized that the first amendment's prohibition against any "law ... abridging the freedom of speech" applies to the states and their subdivisions through the fourteenth amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). The Court has recognized only limited categories of speech that fall outside of the first amendment's protection. The Court has declined to extend protection to fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); defamation, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); speech inciting imminent lawless action, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); and obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Court reaffirmed that obscene material is unprotected by the first amendment and set forth the current permissible limits of regulation. However, the Miller court "acknowledge[d] ... the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited." Id. at 23-24, 93 S.Ct. at 2614-2615.

Appellees did not challenge the Miami ordinance's definition of "obscene" material or the city's constitutional authority to regulate obscenity on cable television. (The ordinance's definition of obscenity is in fact closely derived from the test set forth in Miller.) Rather, appellees challenged the provisions of the ordinance which attempt to regulate "indecent" materials. The ordinance's definition of indecent materials goes beyond the Miller definition of obscenity in two significant respects. First, the ordinance does not require that the challenged materials, "taken as a whole, appeal to the prurient interest in sex." Miller, 413 U.S. at 24, 93 S.Ct. at 2615. Second, the ordinance does not inquire whether the materials, "taken as a whole, do not have serious literary, artistic, political, or scientific value." Id. Therefore, if materials falling within the ordinance's definition of "indecent" are to be regulated, the city's authority to do so must be found somewhere other than in the Supreme Court's obscenity cases.

Appellants' primary argument on appeal is that authority for the city's regulation is found in the Supreme Court decision FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). In Pacifica, a radio station broadcast a twelve-minute monologue by comedian George Carlin entitled "Filthy Words." The monologue was replete with language described as "vulgar," "offensive," and "shocking." Id. at 747, 98 S.Ct. at 3039. The broadcast was in mid-afternoon, and the complaining listener heard the monologue while traveling in his automobile with his young son. The narrow issue presented to the court was whether the Federal Communications Commission (FCC) had the authority to regulate and proscribe this particular broadcast. Id. at 742, 98 S.Ct. at 3036. Five members of the Court concluded that broadcasting of indecency could be regulated by the FCC under certain circumstances. The Court noted that "of all forms of communication, it is broadcasting that has received the...