Hunt v. National Broadcasting Co., Inc.

• Decision Date: 03 April 1989
• Docket Number: No. 87-6625,87-6625
• Parties: 16 Media L. Rep. 1434 Joe HUNT, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC.; ITC Productions, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 289

872 F.2d 289

16 Media L. Rep. 1434

Joe HUNT, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC.; ITC Productions, Inc. Defendants-Appellees.

No. 87-6625.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1988.

Submission Withdrawn Dec. 7, 1988.

Resubmitted Dec. 28, 1988.

Decided April 3, 1989.

Jeffrey L. Melczer, Alhambra, Cal., and M. Eileen McGarry, Dummit, Faber & Brown, Los Angeles, Cal., for plaintiff-appellant.

Rex S. Heinke, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, POOLE and KOZINSKI, Circuit Judges.

WALLACE, Circuit Judge:

Hunt appeals from the district court's denial of his motions for a temporary restraining order and preliminary injunction. Hunt unsuccessfully sought to prevent National Broadcasting Company (NBC) from broadcasting a "docudrama" entitled "Billionaire Boys Club," which was produced by I.T.C. Productions, Inc. (ITC). The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1441. We have jurisdiction over Hunt's timely appeal pursuant to 28 U.S.C. Sec. 1292(a)(1). We affirm.

I

On October 28, 1987, Hunt filed a complaint in Los Angeles County Superior Court requesting a temporary restraining order and a preliminary injunction against NBC's scheduled broadcast of "Billionaire Boys Club" on November 8 and 9, 1987. At that time, Hunt already had been convicted in Los Angeles for the murder of Ronald Levin, and was awaiting trial in San Mateo County for his alleged role in the murder of Hedayat Eslaminia. Following NBC and ITC's removal of the case, the district court denied Hunt's motions, and "Billionaire Boys Club" was aired on November 8 and 9, 1987.

Hunt contended that the broadcast of this docudrama would infringe his sixth amendment right to a fair trial. The docudrama portrays Hunt planning and committing the Eslaminia murder for which he will be tried, and establishes Hunt's motive. Hunt's real name is used, although Eslaminia's is not. The docudrama depicts Hunt's involvement with an enterprise and social group called the "Billionaire Boys Club," and portrays Hunt's personality, activities, and business affairs in ways that further connect him to this murder. Hunt argued that airing this film would severely prejudice his right to a fair trial before unbiased jurors for his alleged role in the Eslaminia murder. In addition, Hunt's conviction in Los Angeles County for the Levin murder was, and still is, on appeal. Should that conviction be reversed, Hunt argued, the broadcast would have a similar effect on any retrial. The docudrama portrays Hunt's social and business dealings with Levin (whose real name is used), establishes Hunt's criminal motive, and depicts Hunt planning and committing Levin's murder. Hunt is shown bragging to friends about the deed, which he calls a "perfect crime." The docudrama features a trial in which Hunt is prosecuted for Levin's murder. After hearing witness after witness testify against Hunt, the jury finds him guilty of first degree murder.

Hunt sought to enjoin this and any future broadcast of "Billionaire Boys Club," as well as distribution of the docudrama, until his pending criminal cases are final.

II

Because the district court denied Hunt's motions, NBC aired "Billionaire Boys Club" as scheduled. We first address the threshold question whether this appeal should be dismissed as moot.

Article III, section 2 of the Constitution extends the judicial power of the federal courts to actual cases or controversies. "The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' " Nebraska Press Association v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976) (Nebraska Press ), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). We have applied this exception to the mootness doctrine where "the complaining party is likely to be subject to the same harm." United States v. Oregon, 718 F.2d 299, 302 (9th Cir.1983) (Oregon ).

Nebraska Press involved an order restraining the media from broadcasting certain information regarding a murder case. 427 U.S. at 543-45, 96 S.Ct. at 2795. The order expired by its own terms before the case reached the United States Supreme Court. Id. at 546, 96 S.Ct. at 2796-97. The Court held that the case was not moot because it was capable of repetition in two respects. First, if the defendant's conviction were overturned and a new trial ordered, the trial court "may enter another restrictive order to prevent a resurgence of prejudicial publicity." Id. Second, the Court observed that the State of Nebraska was a party to the case, and that the Nebraska Supreme Court's opinion authorized state prosecutors to seek similar orders in future cases. Id. at 546-47, 96 S.Ct. at 2697. The dispute between the parties would likely evade review, or at least fully considered plenary review by the Supreme Court, because such orders tend to be short-lived. Id.

Here, as in Nebraska Press, once Hunt faces trial for the San Mateo murder case, or should his Los Angeles murder conviction be overturned and a new trial occur, a resurgence of public interest in Hunt and the "Billionaire Boys Club" may prompt NBC to air the docudrama again. NBC has acknowledged that it might do so, and would object to any restriction on its discretion to rebroadcast it. Yet in this type of case, an injunction is generally sought, as it was here, shortly before a scheduled broadcast date. The broadcast in question will thus already have occurred or been prevented before effective appellate review can take place.

In Oregon, the district court issued an injunction to allocate salmon fishing rights along the Columbia River during the 1982 season. 718 F.2d at 301-02. An interstate agency appealed the injunction, and we had to determine whether the expiration of the 1982 salmon fishing season had mooted the appeal. Id. at 302. We observed that the difficulty of forecasting the seasonal fish run requires the district court to wait until shortly before the fishing season to issue its orders and that the conflict between the parties was certain to continue. Id. We therefore found that this dispute was "capable of repetition, yet evading review," between the same complaining parties. Id.

A similar pattern presents itself here. If NBC decides to broadcast the docudrama before all criminal proceedings against Hunt are finalized, there will be insufficient time before the broadcast for plenary, considered appellate review. Yet the same dispute between Hunt and NBC may recur, and Hunt will claim the same harm.

NBC and ITC have failed to meet the heavy burden required by the Supreme Court to demonstrate that this action is moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). It cannot "be said with assurance that there is no reasonable expectation that the alleged violation will recur." Id. Nor can we see how "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Id. We therefore have jurisdiction to entertain this appeal.

III

Hunt moved for both a temporary restraining order and a preliminary injunction. Both motions were denied. We cannot tell whether he appeals from denial of both motions, or only the preliminary injunction. Since the denial of a temporary restraining order is not generally appealable unless it effectively decides the merits of the case, Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1388 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987), we review the denial of Hunt's motion for a preliminary injunction. 28 U.S.C. Sec. 1292(a)(1).

"Review of an order granting or denying a preliminary injunction is much more limited than review of an order granting or denying a permanent injunction." Zepeda v. United States Immigration & Naturalization Service, 753 F.2d 719, 724 (9th Cir.1983) (Zepeda ). A district court has discretion to grant or deny a motion for a preliminary injunction, and we will reverse only if that discretion has been abused. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 673 (9th Cir.1988) (Caribbean Marine ); Zepeda, 753 F.2d at 724; Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982) (Sports Form ).

The district court may abuse its discretion several ways. First, the court abuses its discretion if it did not apply the correct legal standard governing the issuance of preliminary injunctions, or if it misapprehended the underlying substantive law. Zepeda, 753 F.2d at 724-25; Sports Form, 686 F.2d at 752. Second, the district court abuses its discretion if its decision rested on a clearly erroneous finding of a material fact. Zepeda, 753 F.2d at 725; Sports Form, 686 F.2d at 752-53. Review of factfinding is restricted to the limited record available to the district court when it decided the motion. Sports Form, 686 F.2d at 753. Finally, the court may apply "an acceptable preliminary injunction standard in a manner that results in an abuse of discretion." Zepeda, 753 F.2d at 724.

In reviewing the district judge's application of a preliminary test to the substantive legal area and the facts before him, we will not reverse the district court's order simply because we would have reached a different result. To determine whether there has been an abuse of discretion, we "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... The [reviewing] court is not empowered to substitute its judgment for that of the [district court]."

Id. at 725, quoting Sports Form,...