Demarest v. Athol/Orange Community Television

• Decision Date: 28 February 2002
• Docket Number: No. Civ.A.01-30129-MAP.,Civ.A.01-30129-MAP.
• Citation: 188 F.Supp.2d 82
• Parties: Patricia DEMAREST and Vicki Dunn, Plaintiffs, v. ATHOL/ORANGE COMMUNITY TELEVISION, INC., et. al., Defendants.
• Court: U.S. District Court — District of Massachusetts

188 F.Supp.2d 82

Patricia DEMAREST and Vicki Dunn, Plaintiffs, v. ATHOL/ORANGE COMMUNITY TELEVISION, INC., et. al., Defendants.

No. Civ.A.01-30129-MAP.

United States District Court, D. Massachusetts.

February 28, 2002.

Harris Freeman, William Newman, American Civil Liberties Union of Massachusetts, Northampton, MA, for plaintiffs.

Peter J. Epstein, Boston, MA, for defendants.

MEMORANDUM REGARDING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION (Docket No. 2)

PONSOR, District Judge.

I. INTRODUCTION

The plaintiffs Patricia Demarest ("Demarest") and Vicki Dunn ("Dunn") (together, "plaintiffs") produced a show called "Think Tank 2000," which aired on a local public access cable television station, Athol Orange Television, Inc.¹ Think Tank 2000 concerned itself with issues of local concern, and some of its broadcasts focused on the behavior of local officials in Athol, Massachusetts. In particular, Demarest criticized one local official as having a conflict of interest, and camped outside another local official's home, broadcasting a segment in which she accused him of using his position to get special treatment. When these officials complained to defendants, AOTV suspended Demarest for thirty days from using AOTV facilities and revised its Policies and Procedures Manual.

The suspension and the revised AOTV Policies and Procedures Manual (the "Revised Manual") brought plaintiffs to this court, seeking injunctive and declaratory relief. Plaintiffs contend that suspending Demarest violated the First Amendment, 42 U.S.C. § 1983, and § 531 of 47 U.S.C. §§ 522 et seq. (the "Cable Act"), and that certain provisions of the Revised Manual are in violation of the First Amendment or the Cable Act. Plaintiffs also argue that AOTV has violated Article 16 of the Massachusetts Declaration of Rights. They have filed a motion seeking preliminary injunctive relief.

For the reasons set forth below, plaintiffs' motion for a preliminary injunction will be allowed as to three of the four disputed provisions: (1) the provision that requires release forms from all people that appear in AOTV broadcasts, (2) the provision that prohibits the recording of any illegal act, and (3) the provision that requires producers to indemnify AOTV for legal fees. The motion will be denied as to the provision that requires producers to notify AOTV when a broadcast contains material that is "potentially offensive." Plaintiffs' request that AOTV be enjoined from using Demarest's thirty-day suspension as grounds for further discipline or curtailment of her use of AOTV equipment or facilities will be allowed.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. PEG Channels

As noted above, AOTV is a municipally authorized and operated public, educational, and governmental ("PEG") access channel pursuant to § 531 of the Cable Act. (Docket 1, Exhibit A at 23). The history and purposes of PEG channels are now well-established. Justice Breyer described them as "channels that, over the years, local governments have required cable systems operators to set aside for public, educational, or governmental purposes." Denver Area Educational Telecommunications Consortium, Inc., et al. v. FCC, 518 U.S. 727, 734, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion).

Historically, cable operators have not exercised editorial control over these channels. Id. at 761, 116 S.Ct. 2374. The general intent that operators refrain from editorial control was codified in 1984 with the Cable Act. A House Report accompanying the Act stated that "it is integral to the concept of PEG channels that such use be free from any editorial control or supervision by the cable operator." H.R.Rep. No. 98-934, at 47 (1984), reprinted in 1984 U.S.C.C.A.N. at 4684. The Report explained that,

Public access channels are often the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas.

Id. at 30, 4667. Thus, § 531(e) provided that "a cable operator shall not exercise any editorial control over any public educational, or governmental use of channel capacity...."

Despite this, PEG programs were not entirely without editorial control. The § 531(e) prohibition on editorial control was balanced by § 544(d)(1), which stated that,

Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying ... that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States.

No other editorial control was permitted. In fact, although the 1992 Cable Act sought to add a provision to restrict indecent programming, it was struck down as violating the First Amendment. See Denver Area, 518 U.S. at 760, 116 S.Ct. 2374.

B. Background

As noted, plaintiffs produced a show that aired on AOTV called "Think Tank 2000." Two incidents related to Think Tank 2000 have sparked the current dispute.² First, during a Think Tank broadcast on June 27, 2000, Demarest criticized Mary Foristall ("Foristall"), a member of both the AOTV Board of Directors ("the Board") and the Athol Board of Selectmen, of having a conflict of interest because she had served on too many local boards. (Docket 1 at 6). In response, Foristall registered a written complaint with AOTV criticizing the content of this Think Tank broadcast. A hearing before the Board was scheduled for July 19, 2000. Id.

Second, on July 4, 2000, Demarest aired a Think Tank program criticizing the special treatment that was allegedly received by Duane Chiasson ("Chiasson"), a member of Athol's Needs Assessment Committee. According to the broadcast, Chiasson was granted a permit to construct a home without filing the proper paperwork. Chiasson allegedly misused that permit to remove large quantities of dirt from his property, an action that, Demarest suggested, should have required a different permit. Demarest contrasted this with the inability of a local resident, Margaret Britt ("Britt"), to get a permit to remove dirt from her home. (Docket 1 at 6-7).³

In preparing her broadcast, Demarest set up a camera on the sidewalk opposite Chiasson's home. Chiasson saw Demarest filming, and stopped his car in the street. The two then had a "lengthy conversation." (Docket 1 at 7). Part of this conversation, along with Demarest's questions and commentary, was broadcast as part of the July 4, 2000 Think Tank report which aired on July 6, 2000. Id.

On July 6, Chiasson complained to AOTV that Demarest did not get his permission to tape the conversation, and that "she does not get her facts straight." Id. at 8. He asked that something be "done about this." Id. On July 9, 2000, AOTV responded by refusing to air the Chiasson broadcast during the three additional slots scheduled for Think Tank 2000. Id. On July 10, 2000, Carol Courville ("Courville"), a member of the Board, suspended Demarest from all AOTV rights and privileges. The suspension letter stated that,

The videotape Think Tank 2000 # 16, which premiered on July 6, 2000 at 5:00 p.m. has violated AOTV's policy XII.b.3. of "knowingly falsifying forms." On the tape, both Mr. Chiasson and Mrs. Britt made it clear that they did not want to be on camera and you continued to videotape and cablecast the program. On the "Air Time Request Form" signed by you on July 6, it states that you have "obtained all necessary releases ... from individual(s)."

Therefore, as Executive Director, you leave me no choice but to take this necessary action.

(Docket 1, Exhibit C) (the "Suspension Letter"). The Suspension Letter informed Demarest that the length of her suspension would be determined at a hearing during the July 19, 2000 AOTV board meeting. Id.

During the July 19, 2000 hearing, the Board accused Demarest of (1) violating AOTV laws by not getting Chiasson's permission to record the conversation; (2) violating Massachusetts criminal law for the same; and (3) "lying" when she completed the AOTV form indicating that she had received all necessary release forms. The Board suspended Demarest for thirty days from using AOTV facilities. (Docket 1 at 8-9).

On March 21, 2001, the Board revised several of its policies and procedures and adopted the "Revised Manual." To understand these revisions, some context is necessary. AOTV is governed by a franchise agreement with the town of Athol, most recently renewed on August 23, 1996. (Docket 1, Exhibit A). The franchise agreement created AOTV and an "Access Group," which was responsible for managing and operating AOTV. Id. at 25. The agreement invested the Access Group with the authority to establish written rules and procedures necessary to ensure access to equipment and time on the channel to "all interested residents, organizations or institutions in the town on a non-discriminatory, first-come, first-served basis." Id.

The inclusiveness required by the franchise agreement was reflected in the introduction to the AOTV Manual. Both the Revised Manual and its predecessor stated that "there is very little limit to what you can produce and show on access television. The equipment and air time is here for you and everyone." (Docket 1, Exhibit B at 2, Exhibit D at 2).

The AOTV Policies and Procedures Manual that was in effect until March 21, 2001 (the "2000 Manual"), docket 1, exhibit B, was markedly different from the Revised Manual. Four changes, in particular, are relevant to plaintiffs' motion for preliminary injunction.

First, the 2000 Manual contained a provision exempting certain producers from a requirement that a release form be obtained from any person appearing in an AOTV broadcast. The exemption covered persons whose images or voices were recorded during "electronic news-gathering" (...