Knights of Ku Klux Klan v. Bennett

• Citation: 29 F.Supp.2d 576
• Decision Date: 10 December 1998
• Docket Number: No. 4:97CV2109 TCM.,4:97CV2109 TCM.
• Parties: KNIGHTS OF THE KU KLUX KLAN, Realm of Missouri, and Michael Cuffley, Petitioners, v. Patricia BENNETT, in her official capacity as General Manager of KWMU Radio only, et al., Respondents. National Public Radio, a/k/a National Public Radio, Inc., Amicus Curiae.
• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)

29 F.Supp.2d 576

KNIGHTS OF THE KU KLUX KLAN, Realm of Missouri, and Michael Cuffley, Petitioners, v. Patricia BENNETT, in her official capacity as General Manager of KWMU Radio only, et al., Respondents.

National Public Radio, a/k/a National Public Radio, Inc., Amicus Curiae.

No. 4:97CV2109 TCM.

United States District Court, E.D. Missouri, Eastern Division.

December 10, 1998.

Robert Herman, Partner, Schwartz and Herman, St. Louis, MO, for Knights of the Ku Klux Klan, Realm of Missouri, Michael Cuffley, plaintiffs.

Katharine S. Bunn, University of Missouri, General Counsel's Office, Columbia, MO, for Curators of the University of Missouri. Marvin E. Wright, Knight and Ford, Nancie D. Hawke, University of Missouri, General Counsel's Office, Columbia, MO, for Patricia Bennett, Theodore C. Beckett, Paul T. Combs, Adam B. Fischer, Mary S. Gillespie, Fred L. Hall, Jr., Dr. Malaika B. Horne John A. Mathes, Paul W. Steele, Dr. Hugh E. Stephenson, Jr., defendants.

Elizabeth C. Carver, Associate, Bryan Cave L.L.P., St. Louis, MO, for National Public Radio, Inc. aka National Public Radio, Inc., amicus.

MEMORANDUM AND ORDER

MUMMERT, United States Magistrate Judge.

This matter is before the Court upon the parties' cross-motions for summary judgment. [Docs. 40, 44] The parties have stipulated to the submission of their dispute on the testimony at an evidentiary hearing held on August 12, 1998, on Petitioners' motion for a preliminary injunction; exhibits submitted at that hearing; and exhibits attached to the motions for summary judgment.

Background

The Knights of the Ku Klux Klan, Realm of Missouri, and Michael Cuffley, the state coordinator for the Missouri Knights of the Ku Klux Klan, initiated this action against respondents, the individual Curators of the University of Missouri, and Patricia Bennett, KWMU's general manager,¹ seeking injunctive and declaratory relief on their claim that Respondents violated their First and Fourteenth Amendment rights when refusing the Ku Klux Klan's request to underwrite a program broadcast by KWMU.

As the state coordinator for the Knights of the Ku Klux Klan, Realm of Missouri, Mr. Cuffley is the highest ranking official in that organization in Missouri. (Tr. 157.)² He has held that position for six years. (Id.) Mr. Cuffley's duties for the Ku Klux Klan include speaking at public events, planning activities, and coordinating activities with other Ku Klux Klan organizations around the country. (Id. at 158.)

Mr. Cuffley's organization traces its roots back to 1865 and the aftermath of the Civil War. (Id.) His organization has no official ties to any other Ku Klux Klan organizations, other than the use of the term Ku Klux Klan in its title and a belief in the general principles of the Ku Klux Klan. The Ku Klux Klan admits only American-born white Christians. Mr. Cuffley testified that his organization does not advocate violence, but does participate in "cross lightings" — Mr. Cuffley has participated in a hundred — at which members wear the traditional robes and hoods. (Tr. at 171.)

KWMU is a not-for-profit public broadcast radio station operated by the University of Missouri at St. Louis ("UMSL"). Its licensee, the Curators of the University of Missouri, is a member of National Public Radio, Incorporated ("NPR"). (Jackson Aff. at ¶ 4.) The Director and General Manager of the radio station is Patricia Bennett. (Tr. at 7.) She reports to Dr. Donald H. Driemeier, the Deputy to the Chancellor of UMSL, who in turn reports to Dr. Blanch M. Touhill, the Chancellor of UMSL and its Chief Executive Officer. (Id. at 9.)

The organizational chart for the station lists five divisions under Ms. Bennett's control: the program director, the business manager, the chief engineer, the development director, and the sales manager. (Id.) The development director is in charge of fund-raising, and the sales manager supervises the sales representatives that seek underwriting for the radio station. (Id. at 11, 12.) Only a certain percentage of air time is allotted for underwriting spots. (Id. at 20, 21.) What percentage is a decision made internally by the General Manager with input from her senior team. (Id.) Different amounts of time are set aside for underwriting for different shows, with some limitations being dictated by the type of program. (Id. at 21-22 .)

When an organization makes an underwriting gift to KWMU, that organization is permitted to submit a fifteen-second message to be read on the radio station. (Id. at 33.) The donor provides a gift; KWMU acknowledges that gift on the air. (Id. at 38.) Some underwriting messages are drafted by the donors. (Id. at 38-39.) Other messages are drafted by, or with input and assistance from, KWMU's employees. (Id. at 39.) All underwriting scripts must be reviewed by the station's management. Enhanced underwriting permits the fifteen-second spot to provide identifying information about the organization and a logo or slogan of the donor's organization. (Id. at 29.) KWMU's policy is to permit enhanced underwriting. (Pet'rs Ex. 2.)³ Classes of underwriters include for-profit organizations, companies, and corporations; not-for-profit organizations, corporations and companies; and social services organizations. (Pet'rs Exs. 3-24, 26-37.)

Although Ms. Bennett approves the text of approximately thirty underwriting scripts per week, she does not examine, as a matter of course, the policy or philosophy of each potential underwriter. (Tr. at 62, 122.) She has rejected a request for underwriting from a group titled "Ultimate Fighting Championships"; an establishment she heard was "a house of ill repute"; and the American Friends Service Committee, the latter on the grounds that the group's message was political. (Id. at 118, 121-22; Bennett Dep. at 87.) Ms. Bennett testified that Federal Communications Commission ("FCC") regulations do not allow public radio stations to broadcast political announcements from candidates, except those running for federal office, or messages promoting or criticizing ballot issues. (Id. at 82.)

Some time prior to September 24, 1997, Mr. Cuffley contacted KWMU by telephone and requested information on underwriting a number of fifteen second spots on the station's "All Things Considered" program. (Id. at 160-61.) "All Things Considered" is a radio program that is produced and distributed by NPR, and is a part of KWMU's regular programming. (Jackson Aff. at ¶ 5.) Mr. Cuffley testified that he enjoys the program and wishes to support the station. He hoped to attract a higher, more educated person to his organization. (Id. at 160.) He did not initially identify himself or his organization. (Id. at 161.) The sales representative quoted Mr. Cuffley the underwriting costs for not-for-profit organizations and requested his telephone number, advising Mr. Cuffley that a sales representative would contact him at a later date. (Id. at 161, 163.) There was no contract or agreement worked out between the representative and Mr. Cuffley. After approximately a week with no contact by KWMU, Mr. Cuffley made several telephone calls to the station but was unable to speak with a sales representative. (Id. at 163-64.) On September 24 and again five days later, Mr. Cuffley wrote letters to the station requesting the opportunity to sponsor four segments of "All Things Considered." (Resp'ts Ex. A.) The following message was submitted to the radio station by the Ku Klux Klan to be read in acknowledgment of the underwriting gift:

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 Post Office Box 525, Imperial, Missouri, 63052. Let your voice be heard.

(Tr. at 86-87.)

The message proposed by the Ku Klux Klan to be read on air did not violate any of KWMU's enhanced underwriting guidelines.⁴ (Id. at 89.)

On October 3, Ms. Bennett wrote Mr. Cuffley a letter declining the underwriting gift. (Pet'rs Ex. 38.)

Mr. Cuffley testified that he was accustomed to receiving rejections on behalf of the Ku Klux Klan and fully expected that KWMU would reject the Ku Klux Klan's underwriting gift and proffered announcement. (Tr. at 167.)

Ms. Bennett recognized Mr. Cuffley's request as a potentially high profile issue which could result in litigation. (Id. at 127.) Consequently, she contacted Dr. Driemeier and requested a decision from the Chancellor as to how to proceed. (Id. at 91.) Ms. Bennett recommended to Dr. Driemeier that KWMU deny the Ku Klux Klan's underwriting request; however, she did not explain her reasons for her recommendation. (Id. at 91, 154.) Dr. Driemeier told Chancellor Touhill of the Ku Klux Klan's request, but did not inform her of Ms. Bennett's recommendation. (Id. at 131, 154.) Dr. Driemeier wanted Chancellor Touhill to make her decision with an open mind. (Id. at 154.) Ms. Bennett did not speak with Chancellor Touhill about the proposed underwriting gift before the Chancellor made her decision. (Id. at 124.)

Chancellor Touhill rejected the Ku Klux Klan's offer to underwrite programming on KWMU. (Id. at 131, 133.) It was the only time that she had been asked to rule on the acceptability of an underwriting offer. (Id. at 132.) Chancellor Touhill testified that because the underwriting gifts must be publicly recorded, KWMU would be required to publicly acknowledge the Ku Klux Klan's gift and to read the Ku Klux Klan message on the air.⁵ (Id. at 133, 135.) She further testified that her reasons for rejecting the Ku Klux Klan's proffer were based on business considerations, specifically the loss of revenue to the UMSL that would result from the Ku Klux Klan's message being read on the air. (Id. at 135-36.) This conclusion was based on her twenty-four years' experience in college administration. (Id. at 145, 149.) Chancellor Touhill testified that the views of an organization should not be...