Knights of KKK v. Curators of Univ. Missouri

Decision Date16 September 1999
Docket NumberNo. 99-1168,99-1168
Citation203 F.3d 1085
CourtU.S. Court of Appeals — Eighth Circuit
Parties(8th Cir. 2000) Knights of the Ku Klux Klan, Realm of Missouri, and Michael Cuffley, Appellants, v. Curators of the University of Missouri; Patricia Bennett, in her official capacity as general manager of KWMU Radio only; Theodore C. Beckett, in his official capacity as Curator of the University of Missouri; Paul T. Combs, in his official capacity as Curator of the University of Missouri; Adam B. Fischer, in his official capacity as Curator of the University of Missouri; Mary S. Gillespie, in her official capacity as Curator of the University of Missouri; Fred L. Hall, Jr., in his official capacity as Curator of the University of Missouri; Malaika B. Horne, Dr., in her official capacity as Curator of the University of Missouri; John A. Mathes, in his official capacity as Curator of the University of Missouri; Paul W. Steele, in his official capacity as Curator of the University of Missouri; Hugh E. Stephenson, Jr., Dr., in his official capacity as Curator of the University of Missouri, Appellees. American Civil Liberties Union of Eastern Missouri, Amicus on Behalf of Appellants. National Public Radio, a/k/a National Public Radio, Inc., Amicus on Behalf of Appellees. Submitted:

Appeal from the United States District Court for the Eastern District of Missouri.

Before McMILLIAN, MURPHY, and TUNHEIM,1 Circuit Judges.

McMILLIAN, Circuit Judge.

The Knights of the Ku Klux Klan, Realm of Missouri ("Missouri KKK"), and Michael Cuffley, the state coordinator for the Missouri KKK (together "appellants"), appeal from a final order entered in the United States District Court2 for the Eastern District of Missouri granting summary judgment in favor of the individual Curators of the University of Missouri and Patricia Bennett, general manager of the radio station KWMU (together "appellees"). See Knights of the Ku Klux Klan, Realm of Missouri v. Bennett, 29 F. Supp. 2d 576 (E.D. Mo. 1998). For reversal, appellants argue that the district court erred in holding that, in light of certain facts not genuinely disputed, appellees' rejection of the Missouri KKK as an underwriter violated neither the First Amendment nor the Equal Protection Clause of the Fourteenth Amendment. For the reasons discussed below, we affirm the order of the district court.

Jurisdiction

Jurisdiction in the district court was proper based upon 28 U.S.C. § 1343. Jurisdiction in the court of appeals was proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

Background

KWMU is a not-for-profit public broadcast radio station located on the campus of the University of Missouri at St. Louis ("UMSL"). KWMU is owned and operated by The Curators of the University of Missouri, a public corporation established under state law, see Mo. Rev. Stat. § 172.020 (1999), and licensed by the Federal Communications Commission ("FCC") to run the station. See 29 F. Supp. 2d at 577. The Chancellor of UMSL, Dr. Blanche Touhill, is responsible for overseeing KWMU's operation. See Appellees' Appendix at 249. Patricia Bennett, the director and general manager of KWMU, supervises the station's administration, development, engineering, programming, and sales divisions on a daily basis. Bennett also communicates weekly with Dr. Donald Dreimeier, Deputy to the Chancellor of UMSL, who in turn reports to Touhill. See Transcript of Dist. Ct. Evidentiary Hearing at 7, 9 (Aug. 12, 1998) [hereinafter "Tr."].

To help fund the station, KWMU operates an "enhanced underwriting" program within its sales division. See id. at 30, 32. Pursuant to federal law, the station acknowledges on air any individual or group source of funding for a particular broadcast matter. See 47 U.S.C. § 317(a)(1) (requiring on-air announcement at time of sponsored broadcast identifying source of "any money, service or other valuable consideration . . . directly or indirectly paid, or promised to or charged or accepted by" the broadcasting station). Contributors of such funds are referred to as "donors" or "underwriters." See, e.g., In re Commission Policy Concerning the Noncommercial Nature of Educational Broadcasting, Public Notice, 7 F.C.C.R. 827 (1992) ("1992 Order"). Although federal law forbids noncommercial educational FM broadcasters like KWMU from broadcasting "advertisements," see 47 U.S.C. § 399b; 47 C.F.R. § 73.503(d), public broadcasters are permitted to "enhance" or expand the scope of donor or underwriter acknowledgments by including (1) logograms or slogans which identify the underwriter but do not promote it, (2) location information on the donor, (3) value neutral descriptions of the underwriter's product line or service, and (4) donor brand names, trade names, and product or service listings. See In re Commission Policy Concerning the Noncommercial Nature of Educational Broadcasting Stations, 97 F.C.C.2d 255, 263 (1984) ("1984 Order"). Typically, the announcement is a fifteen-second message, drafted by the underwriter or KWMU staff. See Tr. at 38-39. All scripts are reviewed and edited by station management to ensure compliance with federal law and regulations as well as KWMU underwriting guidelines,3 because UMSL (as the licensee of KWMU) is ultimately liable for all transmissions. See, e.g., 47 U.S.C. § 503(b)(1), (b)(2)(A) (forfeiture provisions); Russellville Educ. Broadcast Found., Licensee of KMTC (FM), Letter, DA 99 1280 (July 1, 1999) (imposing $2500 forfeiture penalty for impermissible advertisements); Penfield Communications, Inc., Licensee of KRTM (FM), Memorandum Opinion & Order & Forfeiture Order, DA 98 2407 (Nov. 25, 1998) (imposing $4000 forfeiture penalty for same reasons).

As general manager, Bennett designates the percentage of total air time available for underwriting spots as well as the amount of underwriting time allotted to particular programs. See Tr. at 21-22. Bennett accepts donor funds from, and approves accompanying messages of, approximately thirty underwriters per week. See id. at 122. As a matter of course, Bennett does not examine the philosophy or policies of each potential donor. See id. at 62. Nonetheless, prior to the institution of this action, Bennett has rejected financial support from several potential underwriters. See 29 F. Supp. 2d at 578 (noting rejection of underwriting requests from a group called "Ultimate Fighting Championships," a political entity titled "The American Friends Service Committee," and an establishment known to be "a house of ill repute").

Some time prior to September 24, 1997, Michael Cuffley4 contacted KWMU by telephone and requested information on underwriting several fifteen-second spots for NPR's "All Things Considered" program. See Tr. at 160-61. Cuffley testified that he enjoyed the program, wanted to support KWMU, and hoped to attract more highly educated people to his organization. See id. at 159-60. Cuffley did not initially identify himself or his organization. See id. at 161. A KWMU sales representative quoted Cuffley the underwriting costs for not-for-profit organizations and requested his telephone number, advising Cuffley that a sales representative would contact him at a later date. See id. at 161, 163. At that point, no agreement was reached between KWMU and Cuffley.

On September 24 and 29, 1997, Cuffley wrote to KWMU requesting the opportunity for the Missouri KKK to sponsor four segments of NPR's "All Things Considered." See 29 F. Supp. 2d at 578. Cuffley submitted the following message to KWMU to be read as an underwriting acknowledgment:

The Knights of the Ku Klux Klan, a White Christian organization, standing up for rights and values of White Christian America since 1865. For more information[,] please contact the Knights of the Ku Klux Klan, at P.O. Box 525[,] Imperial, Missouri[,] 63052. Let your voice be heard!

Appellees' Appendix at 122.

Bennett contacted her immediate supervisor, Driemeier, and requested a decision from Chancellor Touhill regarding the Missouri KKK's proposed underwriting support. Bennett recommended that KWMU refuse the funds but did not outline reasons for this recommendation. See Tr. at 91, 153-54. Driemeier told Touhill of the Missouri KKK's offer but did not inform her of Bennett's recommendation. Prior to making her decision, Touhill did not speak with Bennett regarding the matter. See id. at 124, 154. No one had previously consulted Touhill regarding the acceptance or rejection of underwriting funds. See id. at 132.

Touhill ultimately rejected the Missouri KKK's proposed underwriting gift. See id. at 131, 133. At the district court evidentiary hearing, Touhill explained her decision as follows. She first noted that KWMU was legally required to acknowledge donors on the air. See id. at 133, 135. Touhill anticipated that an acknowledgment of the Missouri KKK as an underwriter would result in a significant loss of revenue to UMSL. Touhill specifically stated that these business and economic reasons, and not the views of the Missouri KKK, were the basis for her decision. See id. at 135-36.

In some detail, Touhill outlined the negative consequences of accepting underwriting funds from the Missouri KKK. First, Touhill believed Missouri KKK sponsorship would jeopardize future gifts from major African-American donors. See id. at 133-35. Based on her experience and interaction with these donors, Touhill predicted a twenty percent decline in annual gifts to UMSL, or a loss of some two million dollars per year. See id. at 148. Second, Touhill projected a drop in student enrollment if the Missouri KKK were accepted as an underwriter. Touhill estimated that twenty-five percent of the 1,565 African-American students at UMSL (and ten percent of the 9,142 white students) would leave the school, resulting in an annual loss of over three million dollars. See id. at 147-48. Finally, Touhill stated that...

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