Schneider v. Indian River Community College Foundation, Inc., 87-5450

• Decision Date: 27 June 1989
• Docket Number: No. 87-5450,87-5450
• Citation: 875 F.2d 1537
• Parties: 53 Ed. Law Rep. 1134 Brian SCHNEIDER and Tom Cosgrove, Plaintiffs-Appellants, v. INDIAN RIVER COMMUNITY COLLEGE FOUNDATION, INC., Herman Heise, Ira McAlpin, Jr., Standish L. Crews, and Guy Cromwell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1537

875 F.2d 1537

53 Ed. Law Rep. 1134

Brian SCHNEIDER and Tom Cosgrove, Plaintiffs-Appellants, v. INDIAN RIVER COMMUNITY COLLEGE FOUNDATION, INC., Herman Heise, Ira McAlpin, Jr., Standish L. Crews, and Guy Cromwell, Defendants-Appellees.

No. 87-5450.

United States Court of Appeals Eleventh Circuit.

June 27, 1989.

Frank A. Kreidler, Lake Worth, Fla., for plaintiffs-appellants.

Richard D. Marks, Dow, Lohnes & Albertson, Washington, D.C., Peter C. Canfield, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL and ANDERSON, Circuit Judges, and THOMAS ^*, Senior District Judge.

HILL, Circuit Judge.

Brian Schneider and Thomas Cosgrove, the appellants, brought suit against the Indian River Community College Foundation, Inc., Herman Heise, Ira McAlpin, Jr., Standish L. Crews, and Guy N. Cromwell, the appellees, alleging that the appellees infringed their Fourteenth Amendment due process and First Amendment rights, and alleging that the appellees infringed their Fourteenth Amendment due process and First Amendment rights, and alleging a pendent cause of action under Florida law. The district court granted summary judgment for all defendants. 684 F.Supp. 283.

I. FACTS

Brian Schneider and Thomas Cosgrove were employees of station WQCS ("the station" or "WQCS"), the radio station licensed to the Board of Trustees of Indian River Community College ("the college"). The Indian River Community College is a Florida state educational institution. Herman Heise is the President of the college; Ira McAlpin, Jr., Standish L. Crews and Guy N. Cromwell are all trustees of the college. The Indian River Community College Foundation, Inc. functions as a fund-raising arm of the college. WQCS is a non-commercial educational station; its format is fine arts and in-depth news coverage, including news from the National Public Radio network and local public affairs coverage. In addition to the paid staff, some of whom teach, the station is assisted by student interns. Schneider was hired January 6, 1982, and served as station manager; Cosgrove, the program director of WQCS, served from February 9, 1982. Neither was employed under a contract with a fixed term of employment.

The episodes at the heart of Schneider and Cosgrove's First Amendment claims are the following. In March, 1982, President Heise held a meeting with the radio station staff to discuss coverage of the Hutchinson Island development. The Hutchinson Island real estate project apparently was the object of local controversy. At the meeting, he advised them that they should not report on the Hutchinson Island development, as doing so might cause contributors involved in the project to withdraw their support of the college. A few weeks later, Heise expressed concern to Cosgrove about the "slanted" coverage on "Morning Edition," one of the news shows supplied to the station by NPR. ¹ In November, 1982, another meeting between President Heise and the staff of WQCS was held. At this meeting, Heise ordered the staff not to air any coverage of the local elections. He stated that coverage would be inappropriate because the college had an interest in the election and several candidates were connected with the college. During the elections, Schneider invited a state representative, Patchett, for an interview with an on-air panel; President Heise allegedly refused to allow the politician to appear. Despite President Heise's admonitions, WQCS did in fact air news stories about the development and about the local elections. Later President Heise stopped Schneider in the hall and ordered him to stop communicating with Patchett or Heise would get rid of him.

Sometime after the elections, the wages of all of the radio station employees were frozen, not matching a July 1983 college-wide increase. The freeze itself became a matter of controversy, as the station employees perceived it to be a result of their refusal to adopt President Heise's news programming directions. Cosgrove discussed the freeze and President Heise's control over programming with a reporter from the Port St. Lucie/Stuart newspaper; the story appeared in a local paper. Heise again called a meeting, at which he discussed the staff members' talking to the press; Cosgrove assumed from Heise's manner that talking to the press again would put his job in jeopardy. In August, 1983, Schneider and Cosgrove were warned not to attend a meeting of the Community Advisory Board, a group of supporters of the station, which the trustees were to attend.

On October 25, 1983, the Board of Trustees of the college held an open meeting in which the station was discussed. The appellants requested an opportunity to speak but were not recognized by McAlpin, the chairman of the meeting. Two weeks earlier, Schneider had been dismissed. The dismissal was withdrawn by the college, but he was then terminated on October 31, 1983, this time permanently. Later, Cosgrove was questioned by his supervisors as to whether he was continuing to associate with Schneider. His position with the station was terminated on July 31, 1984.

The appellants present three basic claims on appeal. First, Schneider and Cosgrove claim that the appellees infringed their First Amendment rights by interfering with their coverage of the news. Second, they contend that they were illegally dismissed in retaliation for their exercise of their First Amendment rights of speech and association. Third, Schneider and Cosgrove argue that the college's dismissal of them violated the requirements of due process. The appellants also made an argument below based on Florida law; because jurisdiction in federal court was pendent to the federal claims and the district court dismissed the federal claims, the district court also dismissed the pendent claim for lack of jurisdiction. Therefore, this issue is before us only on the merits of the dismissal. We will analyze the claims separately.

II. NEWS CENSORSHIP

Schneider and Cosgrove argue that appellees' control over the news programming at WQCS curtailed their First Amendment rights. Four instances are identifiable from the record where President Heise intervened in WQCS' operations to influence the station's coverage. In March, 1982, Heise told a meeting of several staff members of the station not to report on the proposed Hutchinson Island development. A few weeks later, Cosgrove was called into President Heise's office and told that some members of the community had complained about bias in a program regularly run on the station, "Morning Edition." In November, 1982, another staff meeting was held, in which Heise told the staff not to cover the local elections. During this period, Schneider arranged to interview state representative Dale Patchett. While WQCS did in fact cover some of the candidates, President Heise cancelled the interview with Patchett, allegedly because Heise did not like him.

The licensee in this case, the Board of Trustees of the college, is a public institution. The Supreme Court has not reached the question of the range of a public licensee's right to exercise editorial discretion over its broadcast programming. Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973); see also In the Matter of Michael D. Bramble, 58 F.C.C.2d 565 (1976). In the Eleventh Circuit, this issue is governed by the analysis in Muir v. Alabama Educational Television Commission, 688 F.2d 1033 (5th Cir.1982) (en banc), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983). ² The parties exhibit some misunderstanding about the court's holding in Muir, decided "in the twilight of [the former Fifth Circuit's] long and honorable existence." Muir, 688 F.2d at 1054 (Johnson, J., dissenting). Muir was an en banc decision before 22 judges. See Muir, 688 F.2d at 1035. Judge Hill's opinion was joined by nine judges, as well as by Judge Garwood (writing separately but concurring in the opinion)--for a total of 11 judges out of 22. Judge Rubin authored a special concurrence, joined by three judges. Under the principle that, absent a majority opinion, the narrowest concurring opinion is the holding of the case, see, e.g., Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), Judge Rubin's opinion is the law of the circuit.

In the opinion of Judge Rubin, the court held that the degree of control which can be exercised consistently with the First Amendment depends on the mission of the communicative activity being controlled. Where, as here, the activity is not designed to function as a pure marketplace of ideas, "the state may regulate content in order to prevent hampering the primary function of the activity." Muir, 688 F.2d at 1050. A single content-based programming decision, albeit ill-advised, does not warrant judicial scrutiny. Id. at 1052-53; see generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (reviewing unique characteristics of broadcast media and need for editorial discretion). Judicial intervention is not appropriate absent the public licensee's "follow[ing] policies or practices that transgress constitutional rights." Muir, 688 F.2d at 1053 (emphasis added).

It is clear that Congress concluded that the First Amendment rights of public television viewers and radio listeners are adequately protected under a system where the broadcast licensee has sole programming discretion but is under an obligation to serve the public interest. Muir, 688 F.2d at 1041. We believe this principle holds true for the employees of the radio station as well. While the appellants may not be deprived of their own First Amendment rights, there is nothing in the Constitution which gives them the right to use the appellees' equipment and license for their own expression. The appellants, as employees of the station,...