Marcus v. Iowa Public Television

• Decision Date: 11 October 1996
• Docket Number: No. 96-3645,96-3645
• Citation: 97 F.3d 1137
• Parties: 24 Media L. Rep. 2514 Jay B. MARCUS; Marcus For Congress, a political committee; The Natural Law Party of Iowa, a political committee; Edward T. Rusk, of the Working Class Party; Michael Cuddehe; Michael Dimick; Rogers Badgett; Peter Lamoureux; Fred Gratzon; Susan Marcus, Appellants, v. IOWA PUBLIC TELEVISION, a state agency; Daniel K. Miller, in official capacity, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1137

97 F.3d 1137

24 Media L. Rep. 2514

Jay B. MARCUS; Marcus For Congress, a political committee The Natural Law Party of Iowa, a political committee Edward T. Rusk, of the Working Class Party; Michael Cuddehe; Michael Dimick; Rogers Badgett; Peter Lamoureux Fred Gratzon; Susan Marcus, Appellants, v. IOWA PUBLIC TELEVISION, a state agency; Daniel K. Miller in official capacity, Appellees.

No. 96-3645.

United States Court of Appeals, Eighth Circuit.

Oct. 11, 1996.

Jay B. Marcus, Fairfield, IA, Mark A. Thompson, and Mark Sherinian, Des Moines, IA, for appellants.

Richard D. Marks, Kevin J. Kuzas, Suzanne M. Underwald, Washington, DC, for appellees.

Before FAGG, MAGILL, and BEAM, Circuit Judges.

MAGILL, Circuit Judge.

Jay B. Marcus, Marcus for Congress; The Natural Law Party of Iowa, Edward T. Rusk, of the Working Class Party; Michael Cuddehe; Michael Dimick; Rogers Badgett; Peter Lamoureux; Fred Gratzon; and Susan Marcus (Movants) ¹ sought equitable relief against Iowa Public Television and one of its officials (IPTV) in the district court. ² IPTV had scheduled "joint appearances" of Democratic and Republican candidates for United States Representative for each of Iowa's five congressional districts on its program Iowa Press. Movants sought injunctive relief requiring IPTV to "include all legally qualified candidates in the joint appearances," Compl. at 10, as well as other injunctive and declaratory relief. The district court denied a preliminary injunction and, following a trial before the court and an advisory jury, ³ denied permanent injunctive relief. Movants' appeal of this denial of injunctive relief is pending before this Court.

IPTV has two scheduled joint appearances still to be broadcast. On Sunday, October 13, 1996, the Democratic and Republican candidates for United States Representative for Iowa's First Congressional District will appear on Iowa Press, and on Sunday, October 20, 1996, the Democratic and Republican candidates for United States Representative for Iowa's Fourth Congressional District will appear on Iowa Press. Movants have brought this motion for emergency injunctive relief before this Court, requesting that IPTV be enjoined from broadcasting these joint appearances "unless all legally qualified candidates are permitted to participate on an equal basis." Emergency Mot. at 1. Because we conclude that injunctive relief is not warranted at this point in this case, we deny the motion.

I.

IPTV is an Iowa state actor, and is governed under the provisions of Iowa Code § 256.80-256.90. IPTV produces and broadcasts Iowa Press, a "30-minute news and public affairs program [which] airs twice each Sunday at noon and 7:00 p.m." Movants' App. at 14. Beginning on September 22 and running for a total of five weeks, Iowa Press scheduled "co-appearances by the major candidates seeking to represent Iowa's five congressional districts in the Iowa delegation in Washington D.C." Id. The major candidates were all Democrats or Republicans. Under the program's format, a host and a team of political reporters ask questions of the candidates, who would have an opportunity to present their views to the audience.

Movants made repeated requests to IPTV that they be allowed to participate in the joint appearances. IPTV declined to allow other candidates to participate in the scheduled joint appearances, concluding that they were not newsworthy. IPTV did offer to allow Movants and other candidates to present their views on other programs presented by the network. Dissatisfied with this offer, Movants brought suit against IPTV for injunctive and declaratory relief on September 13, 1996. The district court denied Movants' motion for preliminary injunctive relief on September 24, 1996, holding that they had failed to demonstrate irreparable harm and that they did not establish a likelihood of success on the merits. ⁴ Trial was set for September 30, 1996, and a jury was impaneled.

After the presentation of evidence, including witness and expert witness testimony, the jury returned a special verdict with a series of interrogatories. Based on an independent review of the evidence, the district court adopted the jury's findings, and made additional findings. The district court found that, although not intended by IPTV to be "debates," the scheduled joint appearances would be interpreted by reasonable persons viewing Iowa Press to be debates.

The district court also found that the Iowa Press programs were "bona fide news interview programs." Mem. Op. at 3. The district court noted that

defendant network has been airing weekly Iowa Press appearances of public figures for over twenty years. The typical programs are not debates but simply journalists' interviews of persons in the news generally.

Id. at 5. The district court found that Movants had been excluded from the joint appearances "on the basis of independent journalistic and editorial judgments" by IPTV that the Movants were not newsworthy, id. at 4, and specifically held that Movants had failed to prove that their appearance on Iowa Press would be newsworthy. Id. The district court also held that IPTV did not base its decision to include certain candidates in the joint appearances based on the candidates' political affiliation, and that Movants were not excluded from the joint appearances based on their political affiliation or on the basis of their political views.

Based on these findings, the district court concluded that the Iowa Press programs constituted a limited public forum, but that Movants' exclusion from the programs did not violate the First Amendment. IPTV served a compelling state interest, defined by IPTV's policies, by limiting the joint appearances to newsworthy candidates. The district court further held that the exclusion was narrowly tailored because, although not invited to appear on Iowa Press, Movants did have access to other programs presented by IPTV. The district court denied all relief, and Movants appealed. During the pendency of the appeal, Movants brought this motion before us.

II.

We begin by noting that, while we are not unmindful of the time constraints faced by the Movants, principles of judicial economy, equity, and respect for the judgment of the district court do not favor granting Movants their requested relief at this stage of the proceedings. Movants' appeal of the district court's denial of injunctive relief is currently pending before this Court, and it will require an analysis of much the same issues as presented in this motion. Indeed, in this motion Movants request substantially the same relief which they sought--and failed to obtain--in the district court, and which they undoubtedly will seek on appeal. This Court will therefore be required by Movants to expend our resources twice in considering the same issues between the same parties in the same case--a duplicative effort which is particularly undesirable in light of our ever-expanding docket.

In addition to requiring this Court to expend additional resources, motions such as this can be used to gain an unfair advantage over the other party litigant. In considering Movants' motion for emergency injunctive relief, we have before us to balance the Movants' arguments only a hastily prepared response by IPTV, a smattering of the record, and virtually no opportunity for reflection. By contrast, on appeal IPTV will have a full opportunity to rebut Movants' arguments, and to support the district court's judgment. Further, we will have full access to the record in this matter, and sufficient time to carefully consider the legal arguments of all parties. This assures not only fairness to all parties litigant, but also that we will not intemperately--and incorrectly--reverse the carefully wrought judgment of the district court.

Our analysis of Movants' request for injunctive relief is guided by our decision in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc), where we stated:

Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.

We address each of these issues in turn.

A.

The two remaining joint appearances scheduled on Iowa Press concern the First and Fourth Congressional District races. Only Movants Cuddehe and Badgett, the candidates for those races, would be directly affected by the grant of the requested injunctive relief. We therefore direct our inquiry into irreparable harm to these two Movants.

We agree with the district court that the access offered to these Movants on other IPTV programs will be of significant value to the Movants, and might well have a more favorable impact on voters than the earlier airing of Iowa Press. See Order at 2. But see Trial Tr. at 73, reprinted in Movants' App. at Ex. G (expert testimony of Professor Mack Shelley that appearance in a debate is more valuable than a post-debate appearance). We disagree, however, that these Movants have failed to show irreparable harm.

Movants in this motion argue that their First Amendment right to express themselves in a limited public forum has been offended by their exclusion from the joint appearances on Iowa Press. If they are correct and their First Amendment rights have been violated, this constitutes an irreparable harm. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) (plurality opinion) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). This element of the Dataphase analysis is therefore satisfied.

B.

We agree with the district court, however, that the balance of harms in this case weighs against issuing an injunction. Although...