Rhames v. City of Biddeford

• Decision Date: 24 May 2002
• Docket Number: No. CIV. 02-112-P-H.,CIV. 02-112-P-H.
• Citation: 204 F.Supp.2d 45
• Parties: Richard RHAMES, Plaintiff v. CITY OF BIDDEFORD, Defendant
• Court: U.S. District Court — District of Maine

204 F.Supp.2d 45

Richard RHAMES, Plaintiff v. CITY OF BIDDEFORD, Defendant

No. CIV. 02-112-P-H.

United States District Court, D. Maine.

May 24, 2002.

David A Lourie, Esq, Cape Elizabeth, ME, for Plaintiff.

Henry B. Center, II, Esq., Smith Elliott Smith & Garmey, P.A., Saco, ME, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

HORNBY, Chief Judge.

The plaintiff has requested a temporary restraining order. The issue is whether I should order the City of Biddeford to reactivate its public access cable television channel so that Biddeford citizen Richard Rhames can resume his broadcasts on the channel. By ordinance, Biddeford has discontinued all broadcasts. It says that it is doing so only temporarily, so that it can improve its access rules in light of court challenges. Plaintiff Rhames asserts that the real reason for the shutdown is that the City Council is unhappy with the broadcasts he and at least one other private producer have been airing. He contends that the ordinance is a direct infringement of his First Amendment right to free speech. Because Biddeford has no obligation to operate a public access channel, I find that the plaintiff has not shown a likelihood of success on the merits of his claim. I therefore deny the request for a temporary restraining order.

BACKGROUND

Biddeford's procedures for allowing private citizen broadcasts over its public access cable channel are already under attack in this court. Some months before the recent shutdown, Dorothy Lafortune sued the City in October, 2001, challenging its refusal to continue broadcasting her program. Lafortune v. City of Biddeford, No. 01-250-P-H (D. Me. filed Oct. 16, 2001). At the hearing on her motion for a temporary restraining order, I expressed serious doubts over whether the City then had properly adopted the procedures it purported to follow in dealing with Ms. Lafortune. I gave the parties an opportunity to reach a compromise over the emergency relief issue so that they could devote their energies to preparing for and litigating the underlying merits of their dispute. The City agreed to stay the ban resulting from Ms. Lafortune's alleged violation of the User's Agreement until the merits of the claim were resolved.

The Lafortune case accordingly proceeded along the ordinary course for reaching trial. On April 30, 2002, Magistrate Judge Cohen issued a recommended decision. He recommended that I uphold some of Biddeford's public access procedures, but also recommended that I invalidate Biddeford's requirement that producers obtain written releases from any private citizen mentioned during a broadcast. Lafortune v. City of Biddeford, No. 01-250-P-H, 2002 WL 823678 at *8 (D.Me. Apr. 30, 2002). Following that ruling, the City adopted a new ordinance on May 13, 2002, the subject of this lawsuit:

WHEREAS, the City of Biddeford currently provides a public access channel to all citizens which allows unlimited access to all city video equipment, training and channel time on a first come, first served basis for programming on any issue; and

WHEREAS, the Biddeford City Council finds that the existing terms set forth in the City's Cable Television Ordinance and the terms set forth in the current Producer's Agreement are inadequate to complete the communities objectives of the Public Access Television Center and Programming.

THEREFORE, BE IT ORDAINED, by the Biddeford City Council that the following Ordinance is hereby adopted as an emergency ordinance:

Article VI Cable Television Committee, Section 2-414 Moratorium. The current inadequacies of the provisions set forth in Sections 2-404, 2-406, 2-407, 2-408, 2-409, 2-413 are inadequate and ineffective to operate the City's Community Access TV Center. The aforementioned sections are hereby suspended and all public access operations regarding the City of Biddeford's Community Access Television Center are terminated, pending the Council's adoption of new terms for the Ordinance relating to the use, operation and production of public access programming. It is the intention of the Biddeford City Council to promptly resume public access programming.

Compl. (Ex. C). As a result of the May 13 vote, nothing — not even Council meetings — can be broadcast on the public access channel. According to the Verified Complaint, all that can be seen on the channel is continuous broadcast of the following text:

PRESS RELEASE

Due to the increased number of legal and community concerns surrounding the operations of the public access station, your elected officials have opted to establish an emergency moratorium and close down all programming. This moratorium will not only affect the area programming of private producers, but will include all governmental and educational productions.

Within the past year, a number of new programs have been added to the existing live airing of governmental meetings. As the expansion of programming has taken place, the Cable TV Ordinance, which establishes regulations and operational structure of all programming, has not been upgraded to reflect the legal needs of the community.

As your elected officials, we believe it is necessary to respond to the many requests from our constituents on our responsibility to develop clearer regulations. Our decision to enact an emergency order was the result of the recent court recommendation that indicated we needed to clarify our operation of the access station through our ordinance. To eliminate any new concerns or misunderstandings, we have opted to start at the beginning and stop all programming. By establishing this moratorium, we are treating all users equally and fairly.

The Cable TV Committee will have an emergency meeting on Wednesday, May 15th, at the J. Richard Martin Community Center. The meeting location will be posted in the entranceway. The meeting will develop structure to those areas that need to be addressed first as well as how we can begin to structure the operations of the Cable Access Station to reflect the needs and desires of our community.

Sincerely, Mayor Donna J. Dion on behalf of the City Council

Compl. (Ex. D). The plaintiff Richard Rhames, a citizen of Biddeford who broadcasts his views over the public access channel from time to time, thereupon filed this lawsuit on Friday May 17, 2002. Because he sought emergency relief and because First Amendment issues were at stake, I convened a hearing that Friday afternoon before the City had the opportunity to respond in writing. At the hearing, the City's lawyers were present, as was Mr. Rhames with his lawyer. I heard their arguments, but delayed decision until I could read the parties' filings and the case-law they cited. I gave the City until 9:00 a.m. on Monday, May 20, 2002, to file any written response to the motion. The City timely filed a responsive brief.

Rhames asserts that the Biddeford broadcasting moratorium is not a good faith attempt to reform the City's public access procedures to meet legal concerns. Pl.'s Mot. for TRO at 3-4. According to Rhames's verified complaint and accompanying documentation, the city councilors are simply unhappy with the things he and Ms. Lafortune have been saying in their broadcasts. Compl. at 4-5. He says that, rather than permit such broadcasts to continue, the councilors decided to shut the channel down — or at least to use the moratorium time to find ways to stifle free speech in a way that they could better defend in court. Id. To support his interpretation of the events, Rhames states that Councilor Grattelo criticized as unpatriotic a Rhames broadcast following the events of September 11, 2001, see id. at 2; that the moratorium ordinance was preceded by a proposal (never adopted) to limit public access programs to those that directly relate to Biddeford and to establish qualifications for the producers of public access programs, see id. at 2-3; and that following adoption of the moratorium, Councilor Grattelo (who is also chair of the Biddeford Cable Television Committee) stated that the purpose was to devise "new rules so that viewers would not have to change the channel to avoid being offended by what they see on public access." Id. at 5.

ANALYSIS

In this opinion, I am not resolving the merits of the dispute between Rhames and Biddeford. Instead, on a motion for a temporary restraining order I assess four factors: (1) the likelihood, not certainty (full development of the record can alter the prediction) that the plaintiff will ultimately succeed on the merits; (2) irreparable harm to the plaintiff; (3) harm to the defendant; (4) the public interest. New Comm Wireless Services, Inc. v. Sprint-Com, Inc., 287 F.3d 1, 8-9 (1st Cir.2002). Since First Amendment interests are at stake, the last three factors generally favor the plaintiff. I address only the first factor, likelihood of success.

Unfortunately, the proper way to assess the validity of a municipal shutdown of a public access cable television channel in First Amendment terms is uncertain. Lower courts confronted with similar issues generally have used what lawyers and judges call "forum" analysis.¹ See, e.g. Jersawitz v. People TV, 71 F.Supp.2d 1330, 1341-42 (N.D.Ga.1999); Britton v. City of Erie, 933 F.Supp. 1261, 1268-69 (W.D.Pa. 1995). In other words, they have treated public access television channels like other "forums" where citizens exercise their First Amendment rights. Public parks and public streets were the "forums" where citizens spoke their minds long before electronic media had appeared. For those traditional public forums, the Supreme Court has held that the First Amendment prevents government from censoring speech by citizens, but allows government to enforce content-neutral rules reasonably regulating time, place or manner of speaking—if the rules are narrowly tailored and leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d...