Mo. Knights of the Ku Klux Klan v. KANSAS CITY, MO.

• Decision Date: 15 June 1989
• Docket Number: No. 89-0067-CV-W-5.,89-0067-CV-W-5.
• Citation: 723 F. Supp. 1347
• Parties: MISSOURI KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs, v. KANSAS CITY, MISSOURI, Defendant.
• Court: U.S. District Court — Western District of Missouri

723 F. Supp. 1347

MISSOURI KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs, v. KANSAS CITY, MISSOURI, Defendant.

No. 89-0067-CV-W-5.

United States District Court, W.D. Missouri, W.D.

June 15, 1989.

Larry O. Denny, Kansas City, Mo., Stephen L. Pevar, American Civ. Liberties Union, Denver, Colo., Robert Perry, Media Law Clinic, NYU, New York City, Joseph Van Eaton, Spiegel & McDiarmid, Washington, D.C., for plaintiffs.

William D. Geary, Law Dept., Kansas City, Mo., for defendant.

MEMORANDUM OPINION

SCOTT O. WRIGHT, Chief Judge.

On May 26, 1989, this Court entered its order denying defendant's motion to dismiss. This memorandum articulates the underpinnings of that order.

On January 25, 1989, the plaintiffs herein filed their complaint in this action. Plaintiff Missouri Knights of the Ku Klux Klan "Missouri Knights" is an unincorporated association of individuals who espouse a "racialist" viewpoint; they believe that ethnological races should not mix. Plaintiff Allen T. Moran is the highest ranking person within the Missouri Knights.

Plaintiff Kent Teel is an independent producer of video programming in Kansas City. Mr. Teel has produced numerous video programs and alleges that he was thwarted from airing additional programs when Kansas City authorized the elimination of the public access channel. Plaintiffs Ellen B. Ryder and Barbara Ann Roberts subscribe to cable service in Kansas City and regularly watched video programs on the public access channel.

Defendant Kansas City, Missouri "Kansas City" is a municipality within the State of Missouri. Kansas City's Mayor is Richard L. Berkley and its legislature is the Kansas City City Council. Pursuant to state law, the City Council may award, amend, renew and revoke franchises to provide cable services in Kansas City.

I. Factual Allegations

In 1972, then Mayor of Kansas City, Charles B. Wheeler, Jr., created an Advisory Committee to explore community interest in cable TV and to make recommendations concerning a cable franchise. This committee issued a citizens' guide in 1973 detailing the various benefits of cable television.

In early 1977, a cable operator applied for a cable franchise to serve northern Kansas City. This application prompted Mayor Wheeler to reactivate the Advisory Committee, although it was renamed the Study Committee on Cable TV. The Study Committee then solicited applications for cable franchises to serve the Kansas City area. In February, 1978, the Study Committee heard presentations from several companies interested in a cable franchise, including American Telecommunications and Communications Corporation ("ATC") then and now the second largest "multiple system operator" ("MSO") — corporate conglomerates which own multiple cable systems.

In September, 1978, three companies formally applied for cable franchises in Kansas City. ATC applied for a cable franchise to serve the entire city; another operator applied for a franchise to serve the northern portion of Kansas City; and a third operator applied for a franchise to serve the southern portion of Kansas City. To bolster its application, ATC emphasized its commitment to public access and support services.

In December, 1978, the Study Committee recommended the grant of an exclusive franchise to ATC's proposed subsidiary, American Cablevision of Kansas City ("ACV"), and rejected the idea of overlapping and competing franchises. In January, 1979, the Kansas City City Council passed an ordinance which awarded a 15-year franchise (until 1994) to ACV.

Under the terms of the 1979 ordinance, ACV was required to offer a cable package of 32 channels, four of which were to be "public channels" reserved for use by members of the public at no cost. Two of the four channels were reserved for educational programming, a third for cultural programming, and a fourth channel for other public access use. None of the public channels could be deleted without the prior written approval of the Kansas City City Council. ACV was also required to provide public access producers with production equipment facilities and staff assistance free of charge. Even though ACV was required by the franchise to create one public access channel for cultural programming and another channel for general public access use, ACV created only one channel, Channel 20, for both uses.

In August, 1987, several representatives of the Missouri Knights requested weekly public access time on Channel 20 to air a series of 45 programs collectively entitled "Race and Reason" and hosted by Tom Metzger, a nationally known organizer for the Ku Klux Klan and former Grand Dragon of the California Knights. The programs presented political and social commentary from a "racialist" point of view.

This request for access was denied by ACV officials, who advised the Missouri Knights that only locally produced video programming could be presented during public access time on Channel 20. The complaint, however, alleges that no such rule actually existed and non-local productions frequently were aired during public access time on Channel 20. Nevertheless, in order to comply, the Missouri Knights agreed to air locally produced programming. ACV officials then advised the Missouri Knights that before its members could use Channel 20's facilities and equipment, they would have to be trained by ACV personnel in their use. The complaint alleges this requirement was merely a pretext. Nevertheless, the Knights agreed to receive the required training.

On January 25, 1988, a local group named Concerned Citizens for Decency held a press conference at Kansas City City Hall to urge ACV and the City Council to deny any requests by the Missouri Knights for public access time on Channel 20. The complaint alleges that ACV's Director of Public Affairs attended the press conference and stated publicly that ACV did not want to grant the Missouri Knights' request.

The complaint asserts that during the next few months, ACV and Kansas City officials devised a plan by which Channel 20 would be eliminated and a new channel would be created. This channel would be subject to ACV's editorial control. However, the complaint alleges that ACV would continue to air, without editorial interference, the programs that had been previously shown on Channel 20 and ACV would reserve its editorial powers for "extremist" groups, including the Missouri Knights.

On April 22, 1988, the president of ACV, Robert B. Niles, sent a letter to the Kansas City City Council in which he explained that ACV was powerless to prohibit programming that is "morally offensive ... to the City Council's constituents...." Mr. Niles stated that "Councilman Sharp has suggested to us" that the Council eliminate the public access requirement of the franchise. In return, the complaint alleges, if a resolution to that effect was passed, ACV would increase its local programming and accommodate "present access users." A few hours later, Councilman Sharp introduced a resolution which permitted ACV to delete the cable channel if it so desired.

This resolution states in pertinent part:

WHEREAS, Section 21(c) of the franchise states that none of the public channels will be deleted without written approval of the City; NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF KANSAS CITY:

A. That in accordance with Section 21(c) of the cable television franchise ordinance the City Council hereby authorizes American Cablevision to delete the public access channel.

B. That the permission granted herein may be revoked by the City Council at its discretion.

The complaint alleges the sole legislative purpose of Resolution No. 62655 was to prevent the Missouri Knights from cablecasting its programs because of their viewpoint.

II. The Complaint

Plaintiffs' complaint is comprised of four counts. Count I alleges that Resolution No. 62655 violates the First and Fourteenth Amendments to the United States Constitution because the purpose for enacting Resolution No. 62655 was to suppress the "racialist" viewpoint of the plaintiff Missouri Knights. Relief is sought pursuant to 42 U.S.C. § 1983.

Count II is a claim of first impression. Plaintiffs allege that, because Kansas City has created a monopoly cable franchise, it is constitutionally obligated to require the franchisee to create and operate at least one public access channel. Consequently, Resolution No. 62655, which eliminated the franchisee's only public access channel, violates the First and Fourteenth Amendments to the United States Constitution. Relief is sought pursuant to 42 U.S.C. § 1983.

Count III and IV are alleged in the alternative. Count III alleges that the public access channel, in actuality, was never deleted. Rather, the City authorized ACV to retain the public access channel, but to censor it. The assignment of editorial control over a public forum, the complaint asserts, violates the First and Fourteenth Amendments with respect to video producers (such as plaintiffs Teel and Moran) and for viewers who wish to watch programs on that forum (such as plaintiffs Ryder and Roberts). Count IV, based on the allegations above, alleges that Kansas City has violated § 611(e) of the Cable Communications Policy Act of 1984 which provides "a cable operator shall not exercise any editorial control over" cable channels dedicated to public access use. 47 U.S.C. § 531(e).

Plaintiff requests this Court issue declaratory relief pursuant to 28 U.S.C. § 2201 and 2202, declaring that Kansas City Resolution No. 62655 violates plaintiffs' right under the First and Fourteenth Amendments and is, therefore, invalid and, further, declaring that Channel 30, although now labeled a "community programming channel," remains as a matter of law a public access channel and, consequently, (a) is not subject to ACV's editorial control, and (b) Kansas City, therefore, must enforce its original public access franchise requirements. Finally, plaintiffs request this Court issue injunctive relief...