Harold R. Farrow Orner L. Rains Robert M. Bramson Senator Office Building 1121 "L" Street, Suite 808 Sacramento, California 95814 (916) 447-2000 Attorneys for Appellant IN THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT PREFERRED COMH.UNICATIONS, INC., ) a California corporation, ) ) Appellant, ) ) v. ) ) CITY OF LOS Al:rGELES, CALI FOfu"1 lA, ) a municipal corporationr and ) DEPARTMENT OF AND ) a municipal utility, ) ) Appellees. ) ---------------------------------) No. 84-5541 RESPONSE TO BRIEF OF MlICI CURIAE OF THE CITIES OF PALO ALTO, PARK ATHERTON I. IW;:'RODUCT ION A. Assumed By Palo Alto Are To Those Pled Below And Are Incorrect B. Acceptance of Palo Alto's Legal Arguments Hould Require A Radical Reordering Of Consti tutional Rights, And \'lould Require A Rewriting Of The First Amendment II. Pl\LO ALTO ['4ISUNDERSTANDS AND :v1ISCHARACTERIZES THE POSTURE OF THIS CASE III. PALO ALTO'S TO DEVALUE FIRST A..'1ENDt<1ENT RIGHTS, AND THUS TO AVOID CONSTITUTIONAL OF ITS EXCLUSION, MUST FAIL A. The Consti tutio':1 Protects The Of Dissemin3.tion As Hell As The Dissenination Itself B. The Re-Publication of Another's Vie'.Ns Is Entitled To Full CO::1stituti,)!,lal P:ot'-=ctiol1 C. Palo Ai to I s Rei i ance UpO::1 It I..J.-=-=lSed Access" Is :'1isplaced IV. PALO ALTO I S CLAIMED INTEREST IN FIR3T VALJES" IS .mOLLY ':7 U''1.)'JT lE7..1-::' V. PALO ALTO .r>,.:D MISAPPLIES THE TEST A. The O'Brien Test Does Not App To The F:1cts At Issue B. The Requirements of the O'Brien Test Are Not Het 1. It Is Los Angeles' Interest Not Palo Alto's Guesses About Them, ilhich f1ust be Llenti fiea 2. Palo Alto's Suggested "Interest" Are Improper 3 "Cream Skimming" i. PAGES 1 1 5 7 10 11 13 13 23 26 26 30 30 31 32 r;:'AB LS () Continued PAGES 4. Access Channels 34 5. Cornputer-to-Computer Data Transmission 35 6. Disruption of Rights-of-Way 37 VI. CONCLUSION 42 ii. TABLE OF CASE PAGE(S) Adderley v. Florida, 385 U.S. 39 (1966) Associated Film Distribution Corp. v Thornburgh, 520 F.Supp. 971 (E.D. ?a. 1981) Bantam Books, Inc. v. Sullivan 372 U.S. 58 (1963) Bol er v. Youn 's Drug Products Corp. u.S. , 77 L.Ed.2d 469 1983) Buckley v. Valeo, 424 U.S. 1, (1976) Capitol v. Mitchell F.Supp. Catalina Cablevi3ion Associates v. City of Tucson 745 F.2d 1266 (9th eire 1984) Century Federal, Inc. v. Palo Alto 579 F.Supp. 1553 (N.D. Cal. 1984) Cinevision Corp. v. City of Burbank 745 F.2d 560 (9th Cir. 1984) Cit Council of Los Angeles v. Taxpavers For Vincent U.S. , 52 U.S.L.W. 4594 May 15, 1384 Clark v. Community F.or Creative U.S. , 52 U.S.L.W. 4986 (June 29, 1984) Community Communications Co. v. City + of Boulder 630 F.2d 704 (10th Cir. 1980), rev'd 455 U.S. 40 (1982) Co. v. City of Soulder 485 F.Supp. 1035 (D.Colo.) rev'd 630 F.2d 704 (10th Cir. 1980) reinstated 455 U.S. 40 (1982) Community Communications Co. v. Boulder 660 F.2d 1370 (lOt, eire 1981) Cox C1.ble CommunicClti'):13, Inc. v. Si-:l;?ST1 569 F.2d 507 (D.Neb. 1983) Elrod v. Burns, 427 U.S. 347 (1976) 38 12 15 19 24 17 5 1-5 16,37-40 29 28 4, 42 9 34 32, 37 7 l CASE PAGE S FCC v. League of Women Voters, 52 U.S.L.H. 5008 5020 (July 2, U.S. 1984) 25 FCC v. Midwest Video 440 U.S. 689 (1979) 18 United Artists Inc. 14 Frost v. 271 U.S. Railroad Commission 573 (1926) of Calif0rnia 32, 37 Grayned v. City Qf 408 U.S. 104 (1972) Rock fori 39 Grosjean 297 U.S. v. American 293 (1936) Press Co. 15, 20, 35 Home Box Office. 567 F.2d 9 (D.C. cert. 434 Inc. v. F.C.C. eir.), U.S. 829 (1977) 14 Interstate Circuit v. 390 U.S. 676 (1968) Da:las 1 - .::J Kash Enterprises, Inc. 19 Cal.3d 294 (1977) v. City of Los Angeles 12 Metromedia, Inc. v. 453 U.S. 490 (L981) San Diego 28, 31 Miami Herald PUb. Co. v. Hallandale 734 F.2d 666 (11th Cir. 1984) 12 Hiami Herald Publishing 18 U.S. 241 (1974) Co. v. Tornillo, 15, 18, 24, Midwest Video Corp. v. FCC, 571 F.2d 1978) aff'd on other grounds 440 U.S. 689-(1979) 1025 21, 34, 25, 37 32, "'linneapolis U.S. St:"lr v. i1in"1esot,:'i ,75 B L.Ed.dd 295 (1983) :)f Revenue 35 Moffett v. 228 (D. Conn. 11ian, 1973) 360 F.Supp. 20 v. Alabama Educational Television 688 F.2d 1033 (3t'1 eire 1982) -- 15 MurJ0ck V. sylvania,
319 U.S. 105 ii. Pl\GE (S ) Perry Education Assn. v. Perry Local Educators' Assn. 37 , 96 460 U.S. 37 (1983) For Better SDvironnent 20 Sec. of '1:).(:;1,'1.11 v.T.H. 'IllS)' '. I U.S. 52 U.S.L.ll. 4875 (June 26, 1984) Southern New Jersey Newspapers v. State of New Jersey 54 2 F. S u pp. 1 7 3 (D. 1-1 J. 1982 ) Stromberg v. 283 U.S. 359 (1'331) Carr. v. C3S 415 U. S . 394 (1 'J 74- ) T'21'3vi.3i:::):1 Trans:nission v. Pub. Uti1. c:':')'1l. 47 Cal.2d 82 (1956) U.S. Postal Service v. Council of Greenbur h Civic 453 U.S. 114 1981) United St-".te:3 \l. 710 F.2d 141) (9th Cir. 1933) United States v. 'Hr1',,.,est Video Sorp. 406 U.S. 649 (1972) United States v. O'Brien, 391 U.S. 367 (1968) 20 12-13 29 14 32 20 14 26-30 I:lc. 17 Yo un v. A.r:1e r i C3. '1 in i 'rhea 17 427 U.S. 50 \1976 Weaver v. Jordan, 64 Cal.2d 235 (1966) 12 Wollan v. City of Palm Springs 12 59 Cal.2d 276 (1963) OTHER Cable Communications Policy Act of 1984 10 Cal. Pub. Util. Code, Section 767.5 39 Tribe, American Constitutional 28 iii. I. INTRODUCTION The Cities of Palo Alto, Menlo Park, and the Town of Atherton (hereinafter referred to collectively as "Palo Alto"), have filed a brief amici curiae, urging this Court to affirm the decision entered below. However, the arguments made by Palo Alto are not only legally inaccurate, but also improperly assume facts which are contrary to those pleaded below and which have in ct been proven to be false in the context of the very case in which Palo Alto is a defendant. A. Facts Assumed Bv Palo Alto Are ContrarY To Those Pled &'ld Are Incorrect" Counsel for Preferred is uniquely familiar with the arguments contained in Palo Alto's brief. Those arguments are taken almost verbatim from Palo Al to' s of Points anil Authorities in Support of Motion for Summary Jujgment" in Century Federal, Inc. v. City of Palo Alto, et al., No. C-83-4231-EFL 1 (N.D. Cal.). Counsel for Preferred is also counsel for plaintiff Century Federal, Inc. in that case. As might be expected in a summary judgment motion, Palo Alto relied upon a lengthy list of (purportedly) undisputed facts in requesting the 1 See, Century Federal v. City of Palo Alto, 579 F.Supp. 1553 (N.D. Cal. 1984). By order dated November 21, 1984, District Judge Lynch on his own motion removed from calendar both the Cities' Motion for Summary Judgment and the Plaintiff's Cross-motion for Partial Summary Judgment. -1 Century Federal District Judge to grant its motion. Palo Alto now presents the same arguments to this Court, but asks it to assume --in ruling upon an appeal of grant of a Rule 12(b)(6) motion-- the truth of those facts. Yet those facts are directly contrary to the facts pled in the complaint below, and have in fact been demonstrated to be untrue by the plaintiff in Centur Federal. As did the complaint in the instant case, the complaint in the Century Federal case alleged that no physical or economic scarcity characterized the provision of cable television services in the market at issue. Similarly, both complaints alleged that there was no significant disruption from having multiple, as opposed to one, cable television systems in public rights-of-way in the same city. As did the defendants below, Palo Alto in Century Federal attempted simply to disregard those allegations, or to assume their falsity. However, unlike the court below, the court in Century Federal correctly held that the plaintiff must be afforded the opportunity to prove the truth of those allegations. Century Federal, Inc. v. Palo Alto, 579 F.Supp. at 1562 et ~ Yet, in its Hotion for Summary Judgment (and, hence, in its amici brief), Palo Alto again attempts to "assume" facts which it believes support its position. However, in the Century Federal litigation, the plaintiff has now proven that its allegations were correct, and that Palo Alto's "assumed facts" are false. See, "Statement of Undisputed Facts" (Exhibit 1) excerpted from Century Federal's cross-motion for partial summary judgment. Submitted to the Century Federal District Court were the Declaration of John -2 Biggins (the author of Pacific Telephone's cable televisi0n construction manual) (Exhibit 2), the Declaration of Wayne Lagger (the present "CATV Coordinator" for Pacific Bell) (Exhibit 3), and the Declaration of Kenneth Thomas (Exhibit 4), president of a major engineering/consulting firm (together with that firm's eX'!1austive study), to prove that there is no physical licnitation on the number of cable tel ev i s ion compani es \"hi ch ::lay be accomodated in the Cities of Palo Alto, Menlo Park and Atherton. These declarations also show that with modern cable television system construction methods, there is no significant added inconvenience or disruption from having two, as opposed to one, cable television companies construct their systems at the same time. There is also submitted in the litigation the Declaration of Dr. Leonard Tow (Exhibit 5),2 an economist and former university and the president of one of the largest cable television c0mpanies in the United States. Dr. Tow has 20 years of experience in t'!1e cable television industry. His declaration establishes that cable television is not characterized by economic scarcity, i.e., that cable television is not a natural monopoly in Palo This is a fact we believe we could also prove to be true in Los Angeles. 2 The attachments to Dr. Tow's Declaration, amounting to approximately 1000 pages, have not been supplied -- in an attempt to keep the Court's file down to manageable size. Preferred will, of course, immediately provide these documents if the Court so desires. -3 The Declaration of Dr. William Lee (Exhibit 6), a professor of journalism, notes that, in any case, the large number of cities with only one newspaper provides no occasion for franchising newspapers, and that, accordingly, there is no need to "franchise" cable television operators. Finally, Dr. Lee "llso explains in detail the extraordinary injury to journalistic freedom presently caused by the (often successfUl) attempts of local governments to control numerous aspects of cable television ' , , 3 d lssemlnatlon. Preferred believes that it is crucial for the Court to be aware of this evidentiary background in the Century Federal case when it assesses the arguments made by Palo Alto herein. This is true because of the prevalence of cert"lin widespread "myths" about cable television which, though having a certain amount of intuitive appeal, turn out to be completely without basis in fact. some of these nyths of which may have been accurate when applied to the early days of community antenna television, but which have no relevance to modern day cable television), have appeared to form the basis for 3 This "total control", and its attendant chill, of cablecasters by local government is not speculative or hypothetical, as a case presently pending before this Court demonstrates. See Pacific West Cable Co. v. City of Sacramento, et al., No. 84-2373, Appellant's Opening Brief at 10. The factual record before this Court in that case constitutes a livid example of the extraordinary burdens on journalistic freedom which are born of the franchise auction process. See also, Community Communications Co. v. City of Boulder, 630 F.2d 704, 712, n.8, 713, 719-20 (10th Cir. 1980) (Markey, C.J., dissenting), panel majority rev'd, 455 U.S. 40 (1982). -4 some past judicial decisions --particularly decisions in non-constitutional contexts, where the courts Of '-en need not and do not scrutize the particular factual assertions presented to them. See, e.g., Catalina Cablevision Associates v. City of Tucson, 745 F.2d 1266 (9th Cir. 1984). Preferred believes that the record in Century Federal establishes an point: Though the facts alleged in the complaint in this case may be contrary to certain widely accepted beliefs, this by no means indicates that those alleged facts cannot be proven -- rather, it is the "myths" which will be proven to be without basis in fact. As the Century Federal record indicates, the rule that all well-pleaded allegations must be accepted as true, is a wise one. The court below failed to follow this rule, and its judgment must be reversed. B. Acceptance of Palo Alto's Legal Arguments Would Reauire A Radical Reordering Of Constituti:::mal Rights, AJ1d "dould Require A Rewriting Of The First Palo Alto makes two separate arguments. First, it claims that plaintiff has no First rights except when engaging in one very narrm'J acti vi ty, and that Los Angeles has not stopped Preferred from engaging in that activity. Second, Palo Alto claims that Los exclusion of Preferred is "justified" because of the resulting control which Los Angeles has gained over its selected cable television operator. As is shown below, both of these arguments are legally erroneous. However, some preliminary observations are helpful. -5 As it must, given the allegations of the complaint, Palo Alto does not purport to base its arguments upon any "u:1ique" characteristics of cable television which might Cl.rguably provide some basis for distinguishing cases i:1volving other First Amendment speakers. Rather, Palo Alto presents a theory of the Constitution which it must (and appare:1tly does) contend applies across the board to all First & ~ e n d ~ e n t speakers. If Palo Alto's theories are correct as applied to Preferred, then they must also be correct as applied to newspapers, movie theaters, and all other First Amendment speakers. Conversely, if --as is in fact the case-- innumerable decisions have already explicitly or implicitly rejected those theories as applied to newspapers, etc., then they must also be rejected in the context of this case. One of Palo Alto's fundamental beliefs is apparently that all it (or rather Los Angeles) need demonstrate to this Court is that some "public good" has been gained by Preferred's exclusion from access to willing listeners. Palo Alto apparently believes that the means used to obtain the "governmental interests" are completely irrelevant. Thus, Palo Alto recognizes that its suggested "interests" could not constitutionally be obtained through the use of proper police power regulation - that is, neutral, narrowly tailored enactments applicable to all on a non-discriminatory basis. Rather, Palo Alto boldly explains that if Los Angeles does not exclude Preferred from the market, and provide a different operator with a government-protected monopoly, then it will lose the power to extract "concessions." As Palo Alto puts it, without a franchise auction process, "a city forfeits the leverage necessary to obtain such concessions -6 from a ... cable operator. Put simply, an operator will have no reason to a ee [to provide free benefits to t ~ e public] if the municipality cannot exact those concessions as the price of admission." (Amici Br. at 29). However, by acknowledging the fact that the attainment of its "interests" is beyond proper police power, Palo Alto ~ e r e l y underscores t ~ e fact that the municipal actions involved are unconstitutional. A governmental body is forbidden from using the power to grant or deny a benefit or authorization in such a way as to atteQpt to obtain "agreeQent II to inproper requ i rements . "The den i 3.1 0 f a publ i c benefit may not be used by the governnent for the purpose of creating an incentive enabling it to achieve what it may not command directly." Elrod v. Burns, 427 U.S. 347, 361 (1976). In a nutshell, Palo Alto urges as justification for Los Angeles' unconstitutional exclusion of Preferred from its audience that Los Angeles has been successful in achjeving "What it [could] not command directly". Palo Alto's "justifications" are themselves admissions about the unconstitutional and corruptive nature of a process amounting to nothing more nor less than an auctioning off to the highest bidder of the right to engage in free speech. In its brief, Palo Alto seriously misunderstands what issues it is necessary for this Court to resolve at the present time. Palo Alto characterizes Preferred as seeking "the absolute right to construct and operate" a cable television system, and states that "[tJhe question is simply whether cable franchising -7 as an institution is constitutionally sound." (Amici Br. at 3-4) Palo Alto claims that ?referred must lose this appeal so long as Los Angeles and/or Palo Alto can describe any conceivable "franchising process" which would be constitutional. These statements are erroneous for several reasons. First of all, this appeal involves a l2(b)(6) dismissal. It is t ~ e cts alleged in the complaint, not some imaginary cts suggested by Palo Alto or Los Angeles, which will form the basis for this Court's decision. Contrary to Palo Alto's assertion that Preferred has not "attacked the details of Los Angeles' particular franchising process", the complaint contains almost three pages of such "details" which Los Angeles imposed as prior restraints even to participate in its auction (at least with the chance of "winning"). (CT 1 at 8-11). At a minimum, each of those ?rior restraints would have to be justified (ba upon cts) before Los Angeles can prevail as a matter of law. Palo Alto's attempt to defend some paradigm "franchise process" must be rejected unless it is concluded that there is no conceivable municipal action which could violate a cable television operator's First Amendment rights. More significantly, the complaint also alleges "that the city will not permit plaintiff to operate a cable television system within the South Central area under any circumstances or on any terms and conditions." (CT 1 at 11-12). Thus, it is Los ~ ~ g e l e s ' exclusion of Preferred which must be defended in this case. In the second half of its brief, Palo Alto suggests some purported "governmental interest" in the availability of certain cable services (such as access channels). However, Palo Alto -8 fails to explain how those "interests" could support Los Angeles' total exclusion of plaintiff. Assuming ar endo the legitimacy of the interests proposed by Palo Alto, the appropriate method of fulfilling those interests would be to enact a legislative ordinance requiring the relevant services, and then to invite in all persons willing to operate subject to such requirements. Had Los Angeles taken action, imposing narrow, carefully tailored requirements in a non-discriminatory shion, Palo Alto's discussion might be of more relevance. Perhaps, in that case, certain of those requirements would be upheld -- perhaps not. The Court no p not decide those questions because Los did not proceed in that fashion. This Court has no way to know what requirements Los Angel es l'Y'ould in fact impose were it to proceed properly, in a normal legislative manner. Regardless of the opriety of the asserted interests, the auctioning off of a First Amendment right, and the tot3.1 and permanent exclusion of the "losers" and "non-participarlts," is an improper method of seekirlg to achieve those interests. As the District Judge in the Boulder case recognized: Assuming that Boul r does have the claimed authority to regulate cable television within the City in the manner which [it desires], the approach taken is not an appropriate exercise and articulation of a policy of regulation ... It might well be a different case if Boulder had enacted an ordinance articulating qualifying criteria for cable companies to do business in the City, with such other regulations as the City government might believe to be ne essary and proper in the exercise of police power .. Community Communications Co. v. City of Boulder, 485 F.Supp. -9 1035 (D.Colo.), rev'd 630 F.2d 704 (10th Cir. 1980), reinstated 455 U.S. 40 (1982). Finally, this case does not turn, as Palo Alto contends, upon "the right to operate a cable television system without a franchi se" . Rather, the key question is: "Under what circumstances and for what reasons may Los withhold such a franchise?" Pref'2rred is quite willing to obtai:"! a "franchise" (or "license", "permit", etc.) from Los Angeles, so long as Los l-1....'1geles issues it in cOElpliance with 4 the requirements of the Constitution. For exanple, a ci can constitutionally require a parade permit from would-be demonstrators, but the First Anendr:1e!1t requires that such permits be issued in a manner consonant with its dictates. The same is true for cable television "per.nits." III. PALO ALTO'S .!;TTE>lPT TO DEVALUE PREFERRED'S FIRST RIGHTS, A!:'l"D THUS TO AV'JE) CONSTITUTIONAL SCRUTIJY OF ITS EXCLUSION, MUST FAIL Palo Alto contends (1) that a prohibition upon the erection of a cable television system does not raise rst Amendment questions because the actual laying of wires does not 4 The recently enacted Cable Act defines the term "franchise" as meaning any "authorization . whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise". (Section 602(8. This definition undercuts Palo Alto's claim of support from the Act's explicit authority to issue "franchises". -10 involve expression; (2) that the rst Amendment protects only material, that the publication and transmission of expression created by anyone other than an employee of Preferred is completely unprotecte5; and (3) that, as a result of the previous two contentions, Preferred's only "true" First Amendnent activity (i.e., transmission of newly-created m::lo::erial) could be "adequately" disseminated through use of the "leased access" channels to be provided by Los Angeles' selected cable These ::lore The first, because it relies upon an unacce ably narrow view of the First Amendment; the second, because it represents a etely improper and unprecedented view of w"'nat is "expressive activity"; and the third, because it depends upon the accuracy of the first two. In addition, the third proposition is erroneous for reaS0ns. A. The Constitution Protects The Means Of Qisse;nination .;'s h'ell As The Disse;nination Itself Palo Alto argues that the construction of a cable television system "itself involves no communication protected by the First Amendmert ... [The] activities [involved in erection of a cable system] are no more protected by the First Amendment than are construction of water, electrical, or gas distribution systems, or for that m::lotter telegraph or telephone systems." (Amici Br. at 7). This argument is erroneous. -11 Palo Alto is incorrect when it states that placement of the means of conmunication (i.e. cables and wires) upon public rights-of-way is unprotected under the First A:nendment. Rather, when a person seeks to take some action for the purpose of subsequent expression, such action is protected under the First Amendment. The Constitution protects the means of dissemination as well as the dissemination itself. Associated Film Distribution Corp. v. Thornburgh, 520 F.Supp. 971, 982 (E.D. Pa. 1981); "'leaver v. Jordan, 64 Ca1.2d 235 (1966) As the California Supreme Court stated in Wollam v. City of Palm Springs, 59 Ca1.2d 276, 284 (1963): The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the [contrary] position ... would, if carried to its logical conclusion, eliminate the right entirely. As Preferred has previously noted (Appellant's Opening Br. at 13-15), this point was recognized and specifically applied to the erection of a cable television system in the Boulder litigation. This point is also clearly evidenced by the "newspaper box" cases. See, e.g., Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666 (11th Cir. 1984); Southern New Jersey Newspapers v. State of Jersey, 542 F.Supp. 173 (D.N.J. 1982); Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d 294 (1977). These cases clearly hold that the placement of newspaper boxes in public forums is activity protected under -12 the rst Amend::aent. As was stated in Southern New Jersey Newspapers, supra: In that [newspaper] boxes playa role in the distribution of plaintiffs' this court agrees with the position that such devices are entitled to full constitutional protection. S 542 F.Supp. at 183. Were Palo Alto's contention correct, a city would be permitted to ban a newspaper's boxes from its streets because "they are nerely metal and plastic structures whose placement is unrelated to actual dissemination." B. The Re-Publicatio!1 Of .;rlOther's Views Is Entitled To Full Constitutional Protection Palo Alto urges upon this Court the novel proposition that a person who "merely" re-publishes (i.e. re-transmits) the messages of another is not entitled to any rst .:;"-c1ewJ.ment rights. However, scrutiny of this theory reveals its untenable nature -- it represents on what Palo Alto wishes the law to be, not what it is. No case of which Preferred is aware has ever identified any such differing First Amendment protection for 5 Of course, valid time, place and manner regulations are permissible when a speaker seeks to ce its means of dissemination upon public property. Plaintiff has always been willing to comply with such reasonable regulation of the manner in which it erects its system. (CT 1 at Par. 9). -13 .. d . . 6 orlglnate --as opposed to other-- Rather, the case law makes clear that republication is fully as protected as original expression. Thus, for example, motion 6 Palo Alto supports its theory with a hodge-podge of inapposite cases. None of those cases recognize the constitutional distinction I",hich Pal!) Alto urges upon t"!1is Court. Two of the cases, Fortniqhtlv Corn. v. United Artists Television Inc., 392 U.S. Teleprompter Corp. v. CBS, 415 U.S. 394 (1974), are t3ken out of context: they are copyright cases, which solely addressed the issue whether the retransmission of broadcast programs fell within the legal de f ini t i on of "per fornances" under the Copyr i ght Act. Ne i ther mentions the First Amendment. The citation to United States v. Midwest V 0 Corp., 406 U.S. 649 1 680 (1972), is to the dissenting opinion. plurality and concurring opinions in the case draw no such distinction. More importantly, none of the opinions addressed First Amendment issues. In Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 45 n.80 (D.C. eire ), cert. denied 434 U.S, 829 (1977), the court does not the distinction claimed by Palo Alto, but merely to show that any permissible statutory FCC authority over "broadcast" signals could not be used to justify control over non-broadcast programming. Moreover, the footnote is to a paragrap'1 which ccmcl udes that "there is nothing ... to suggest a constitutional distinction between cable television and newspapers ...... Id., at 46. Finally, Palo Alto's reliance upon the six FCC cases decided between 1965 and 1969 is unjustified. Br. at 10). Each of those cases involved the FCC's authority to control communications disseminated over the broadcast spectrum. Those cases simply held that the FCC could regulate the uses made of such communications by cable companies --and by any other persons. Not one of these cases even arguably stands for the proposition that original and re-published messages receive differing First Amendment protection. Most of them did not even mention or consider any First Amendment issues. However, Palo Alto's reliance on these cases simply underscores its failure to recognize the constitutionally significant changes which have occurred in the cable television medium, and which make modern cable television operators directly analogous to newspaper publishers. In the 1950's and 60's, community antenna television was generally limited to re-transmission of broadcast signalS:- Today, that simply is not the case. See, Appellant's Opening Brief at 5-7. -14 picture theater owners, who if ever create or edit films that they exhibit, possess full First Ajnendment rights. Interstate Circuit v. Dallas, 390 U.S. 676 (1968). Similarly, book publishers and local broadcast television stations, which generally or exclusively "republish" or "distribute" content created by others, enjoy First Amendment protection. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), v. _E_d_u_c_a_t_i_o;;..;n'-'..-a_1C-T_eC-l..... e_v_l_s.:....;;.i..:;.o 688 F. 2 d lO 3 3 (5 t h ..... C i r. 1982) Newspapers are also primarily composed of content not originated by their employees. Such typical content would include national wire service stories and photos; syndicated news, opinion and/or entertainment columns; advertisements; want ads, c strips; financial/stock market data; sports box scores and averages; and theater and television schedules. Yet these same major newspapers enjoy First Amendment protection. See, e.g., r-1iami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Grosjean v. American Press Co., 297 U.S. 293 (1936).7 7 Palo Alto might argue that newspapers lish "more" self-created material than do cable telev sion operators. However, acceptance of such a tenuous foundation for a constitutional princi e would not only effect a radical re-ordering of rights, but would also open a virtual wonderland of issues: Hhich newspapers create more material than which cable television operators? What if a particular cable television operator creates more new material than a particular newspaper publisher? How much newly-created material is (Footnote continued on next page) -15 This Court's recent decision in Cinevision Cor. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984) completely repudiates Palo Alto's theory. The plaintiff in Cinevision was a concert promoter who did nothing more then arrange for performances by various musical groups. City suggests that because Cinevision does not seek to "express" its views, it has no First Amendment right to promote concerts for profi t. However, ... [a]s a promoter of protected musical expression, Cinevision enjoys First rights. * * * [A] concert promoter, like a book seller or theater owner, is a type "clearinghouse" for expression. 745 F.2d at 567-68 (emphasis alter ) . One who acts as a "clearinghouse expression" ne not even be familiar with the content of that expression ln order to be afforded full First Amendment protection. ld. at 568. Even accepting at face value Palo Alto's description the functions of a cable television operator, such a would exactly fit a book seller, who neither creates nor edits books, nor necessarily provides books unavailable through a competing Footnote Continued "enough"? Who decides? Hould a newspaper publisher lose its First Amendment protection if it origina no material? Might a newspaper publisher be entitled to rst protection on some days but not on others (e.g., on Sundays, when syndicated features and columns, puzzles, comic strips, advertisements and want ads amount to a higher percentage of the newspaper's content)? -16 8 outlet. The First protects the e ession
of ideas. True origination of an idea occurs completely within the brain of a human being. It is the distribution of that idea, whether by the "creator" or by anyone else, which is entitled to protection. 8 Palo Alto suggests that the rst Amendment does not protect "duplicative" programming, that is progr3.mming also distributed by ot"ers. (A:l1ici Br. at 10). Hith all due respect, this proposition is absurd. A book seller does not lose his First AmendT11ent rights simply because a conpetitor sells the sane A movie theater cannot be closed merely because a thea ter nearby shows the sane movies. '1'\;/0 Los Angeles newspapers may both carry the same wire story, a:1d both have the cO:1stitutional right to do so. One's First AInendment rights are not lost simply because one's neighbor or competitor says or publishes the same thing. Palo Alto's citations are etely off point (and, indeed, border on the bizarre). Justice Powell's concurring opinion in Young v. &l1erican Theaters, 427 U.S. 50, 78 n.2 (1976) discusses a zoning ordinance that regulates where adult movi es could be not whe ther they could be shown. Ti18 regulation dii not prohibit 3.ny rticular exhibitor froT11 showing movies, or limit the number of total exhibitors within the city. In fact, Justice Powell points out that rk forces ,.;ill determine the number of adult theaters w city, not the zoning ordinance. Id. at 79. In United States v. Paramount Pictures, Inc., 334 U.S. 131, 166-67 (1948), the Supreme Court an antitrust case dealing with monopolistic cO:1duct by private movie ?roducers. The Court considered the "suggestion" that the monopolistic conduct at issue might amount to a First Amendment violation of the rights of the audience at large. The Court simply noted that the monopolistic conduct at issue did not deny access to any willing viewer. Finally, in Capitol Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 584 (D.D.C. 1971), ':he District Court upheld a ban upon the broadcast of cigarette advertising because of the limited First Amendment protection granted to commercial speech [at least in 1971J and "the unique characteristics "of" the broadcast medium. The Court also noted that bro3.dc3.sters were not precluded from 3.iring their own point of view on any aspect of the cigarette smoking question. In sum, it would be an understatement to say that these cases do not support Palo Alto's claim that the First Amendment provides no protection to a willing speaker if another speaker has beat it to the punch. -17 In any event, Palo Alto's characterization of a modern cable television operator as nothing more than a passive re-transmitter of messages is simply incorrect as a factual matter. As the Supreme Court recognized more than five years ago: Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include. As the Commission, itself, has observed, "both in their signal carriage decision and in connection with origination function, cable television systems are afforded considerable control over the content of the progranming they provide." FCC v. Midwest Video Corp., 440 U.S. 689, 707 (1979) (emphasis added). This exercise of editorial discretion is fully protected by the First Miami Herald Publishing Co., supra, 418 U.S. at 258. C. P-3.lo Alt:)'s Reli-3.nce Upon "Leased . Access" Is Misplaced In an argument predicated upon this Court's acceptance of its extraordinary "republication" theory, Palo Alto claims that Preferred's unquestioned First Amendment -3.ctivity (i.e. dissemination of newly-created material) can be fully met by us ing space purchased from ar'.other cable company. Therefore, Palo Alto argues, Los Angeles is free to preclude Preferred from erecting its own system. Since, as Preferred has already shown, all of Preferred's programming would be protected speech, and Palo Alto concedes that there will never be sufficient space on the "franchised" cable operator's system -18 available for Preferred to provide all such programming, the Court should reject Palo Alto's on that basis alone. However, even were this not the case, Palo Alta's claim that "leased access" is "adequate" for Preferred is completely erroneous. First of ::ill, the existence of some "alternative" method of communicating one's message does not in and of itself entitle government to prohibit the particular preferred by the speaker. Palo Alto's claim is similar to the claim of the government in Bolger v. Young's Drug Products Corp., ___ u.s. 77 L.:j.2d 469 (1983). In that case, the federal government successfully attempted to support a ban upon the unsolicited mailing of contraceptive advertising. The Supreme Court stated: The GovernJClent argues that section 300l(e)(2) does nat interfere "significantly" with free speech because the statute applies only to unsolicited mailings and does not bar other channels of communication .... However, this Court has previously declared that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place". 77 L.Ed.2d at 479 n.1B (citations omitted). Secondly, the "alternative" suggestej by Palo Alta would be woefully inadequate to meet Preferred's First Amendment interests. Just as the First Amendment rights of a newspaper publisher would be violated by a requirement that it purchase space from a rival newspaper in order to disseminate, Preferred's First Amendment rights would be severely infringed were it rele9ated the "second class citizenship" urged by Palo -19 Alto. The use of channel space on the system of another is a vastly inferior of communicating to cable television subscribers. Such a method o speech would ma 1 <;:e it impossible to generate the revenue stream necessary to support local 9 reporting and program production. The viewers would be the system owner's subscribers, and would pay it, not Preferred. EVen were it possible to enter into some arrangement for separate receipt of revenue flowing from Preferred's programming, it would be impossible to generate the necessary revenue to engage in the variety of communication which Preferred desires. As with any of the media, some lucrative services subsidize the provision of less profitable 9 Palo Alto erroneously shrugs off financial interests as being outside the ambit of the First AmenJment, cit U.S. Postal Service v. Council of Greenburgh Civic 453 U.S. 114 (1981). However, Palo Alto seriously misreads Greenburgh. In that case, the Supreme Court found --contrary to the facts of this case-- that the public property at issue was not a public forum. The Court then simply noted that the merearticulation of an inexpensive poss e use II'/as insufficient to convert a non-public forum location into a public forum. In this case, the starting point is that the public locations in question are a public forum. Innumerable decisions have recognized that the First Amendment protects the financial interests of speakers. Se Grosjean v. American Press Co., 297 U.S. 233 (1936) (gross receipts tax): Murdock v. Pennsylvania, 319 U.S. 105, 112-14 (1943) (solicitation tax); :>1offett v. Killian, 360 F.Supp. 228, 231 (D. Conn. 1973) (fee charged for lobbying). As the Supreme Court explained in Schaumberg v. Citizens For A Better Environment, 444 U.S. 620 (1980), and recently reaffirmed in Sec. of State of 'land v. J.R. Munson Co., 52 U.S.L.W. 4875 (June 26, 1984 , a restriction upon the ability to raise revenue affects a First Amendment speaker's ability to speak at all. UnQer Palo Alto's theory, the Los Angeles Times could be constitutionally forbidden to charge for its publication. -20 journalistic endeavors. "Le3.sed access" on another's system will never be adequate from stanjpoint, both because of the limited available sp3.ce and because prospective listeners to Preferred's speech would already have h3.d to subscribe to the other cable comp3.ny's services in order to the ability to receive Preferred's Finally, Preferred would have nO opportunity to communicate to residents who chose not to subscribe to the other company's services. In sum, "leased access" might be adequate for a "backY3.rd vinco amateur", but is certainly not adequate for the quality and scale of production which ?referred desires to disseminate. In addition, the inadequacy of the "leased access" alternative is exacerbated by the questionable nature of its availability. At best, availability is limited to the total number of channels set aside r such use by the existing lCJ cable operator. An un'knQlvn nU'lber of persons other t'lan Preferred will also desire to use some or all of this space. Preferred may well be left with no access at all, or access only at undesirable or ever-shifting time slots. Moreover, since Preferred desires to compete in a substantial way with 10 Palo Alto relies heavily upon the recently enacted Cable Communications Policy Act of 1984 ("Cable Act "), which it claims will require provision of five channels for such use. However, it is unclear whether this requirement is enforceable. A similar requirement imposed by the FCC upon cable television operators was found to be violative of the First Midwest Video Corn. v. FCC, 571 F.2d 1025 (8th Cir. 1978) a'd on other grou;ds 440 U.S. 689 (1979). -21 any existing cable operator, Preferred will undoubtedly confront discrimination against it in access to and being charged for such channel time. The recently enacted Cable Act specifically permits, and in fact envisions, such discrimination. Section 6l2(c). As explained in the report of the Committee on Energy and Commerce, H.R. Rep. 98-934 (August 1, 1984) (Appendix B to A.-nici Brief), Section 612 intentionally permits such discrimination, including price discrimination based upon the proposed content of the speech and its estimated impact upon the existing cable system's revenue. section does contemplate permitting the cable operator to establish rates, terms and conditions whic:1 are discriminatory. is, nothing in these provisions is intended to impose a requirement on a cable operator that he make available on a non-discriminatory basis, channel capacity set aside r commercial use by unaffiliated persons ... Thus, in establishing price, terms and conditions pursuant to this section, it is appropriate for a cable operator to look to nature (but not the specific editorial content) of the service being proposed, how it will affect the marketing of the mix of existing services being offered by the cable operator to subscribers, as well as potential market fragmentation that might be created and any resulting impact that might have on subscriber or advertising revenues. 11. at 51. Palo Alto asks this Court simply to assume that "leased access" is adequate to meet Preferred's First Amendment needs. It does so without the Court knowing anything about Preferred's plans and desires. In essence, Palo Alto asks the Court to rule, as a matter of law, that it is impossible for Preferred to intend any quantity and quality of speech which -22 could not be adequately carried over severely limited space on a "leased access" channel. The folly in such a claim was revealed in the evidence provided tJ the District Court in the Century Federal case. (See Tow Decl. [Exhibit 5J at Par. 27-33). In the alleges a cQgnizable violation of Preferred's First Amendment rights. The possible existence of "leased access" does not alter this fact. IV. PALO ALTO 'S CLJ\!'iED IN __ "1CI:W FIRST P....'1END:1E'IT V.J\L1JES" IS ',mOLLY 'dITHOUT '1ERIT In an argument exemplifying Palo Alto's lack of understanding of the First fuJendment, it argues to this Court that Los Angeles' ::lonopoly franchising scheme should be upheld because it "enhances II First A:'"lendment values. (knici Br. at 15-18). Pa 10 Al tJ arg.les that the ex i stence of "1 eased access" requirements S0r:1e:'10'd it "wor t:1 it" to restrict Preferred's First rights. This is purportedly because leased access permits dissemination over a cable television syster:1 at a lower cost to some individual members of the public than the actual cost to society of doing so. (In other words, that the "franchised" cable system's subscribers are subsidizing speech over the access channels). In Preferred's opinion, it is difficult to imagine a more wrong headed view of the First Al'"lendment. The fundamental doctrine of the First Amendment is that it is not government's role to manage the marketplace of ideas, nor to impose its opinion about the "best" manner, -23 method or frequency of speech, nor to make judgments based upon fears or that certain instances of speech will not be "in the public interest". In essence, Palo Alto argues that government is permitted to stop one class of society from speaking (i.e. that set of persons with the resources and ability to erect their own cable television systems) in order to make speech by another segment of society (i.e. those without the resources --or desire-- to own their own system) less expensive. Needless to say, Palo Alto has things backwards. [TJhe concept that may restrict the speech of some elements of our society in order to the relative voice of others is wholly foreign to the First Amendment. Buckley v. Valeo, 424 U.S. 1, 48-49 (1976). Palo Alto's flies full in the face of the Supreme Court's opinion in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Tornillo, the Supreme Court squarely rejected the concept that government could require newspapers to provide access to the public for a "right to reply" The Court helj that the goals of broad access and balanced coverage of issues, however desirable, were simply irrelevant: the First precludes government from achieving such goals by burdening the speech of others. 418 U.S. at 254. The Court rejected the claim that there is an exception to this rule \vhen a "natural monopoly" is present. In this case, Palo Alto does not even posit any exception to the rule explained in Tornillo. It simply ignores -24 the rule and boldly argues that "good goals" provide government 11 with carte blanche to take unlimited action. But the list of good "objectives" conceivable by the numerous regulatory agencies of the Federal government and perhaps achievable if they had carte blanche, is endless. And every act of every agency would be justified, jurisdictionally sound, and judicially approved, if values sought were the sole criteria. Midwest Video Corp. v. FCC, 571 F.2d 1025, 1042 (8th Cir. 1978), aff'd 440 U.S. 689 (1979). In any event, Palo Alto wholly fails to connect its "interest" to the restriction at issue: The exclusion of Preferred from willing listeners. Preferred desires to expand the number of speakers. It desires to and intends to provide speech different than that of any other cable television economic self-interest provides an incentive for such differentiation. As noted supra, the City of Los Angeles is free to pass a generic law requiring the provision of leased 11 As was demonstrated to the District Court in the Century Federal case, the auctioning off to a monopolist of the opportunity to speak seriously injures First Amendment values, not enhances them. (Lee Decl. [Exhibit 6J). The lacrc of press freedom resulting from the selection and subsequent control over a member of the press makes it impossible for the press to fulfill its role as watchdogs over government. As Justice Stevens commented in a recent First Amendment case: The court jester who mocks the King must choose words with great care. An artist is likely to paint a flattering portrait of his patron. The child who wants a new toy does not preface his request with a comment on how fat his mother is. FCC v. League of ivor:1en Voters, U.S. 52 U.S.L.H. 5008, 5020 (July 2, 1984) (dissenting opinion). -25 access channels by cable television operators and then to permit Preferred, and others, to operate subject to such requirements. Such non-discriminatory, generic regulations could then be scrutinized by a court to test their constitutionality. It is only at that point that Palo Alto's arguments about "enhancement" woul] be properly before the Court and ripe for assessment. V. Pl".LO ALTO AND THE O'BRIEN TEST In the second half of its brief, Palo Alto argues that Los Angeles' actions, even if they do infringe upon Preferred's First Amendment interests, are justified under the balancing test set forth in United States v. O'Brien, 391 U.S. 367 (1968). However, Palo Alto is wrong -- the O'Brien test does not apply in the context of this case. Furthermore, even were the First Amendment infringements at issue here assessed under the O'Brien standards, they would fail to meet those requirements. A. The O'Brien Test Does Not Apply To The Facts At Issue Palo Alto summarily asserts "[bJecause the franchise process is content neutral, the 'track two' test [of Professor TribeJ, derived from United States v. O'Brien ... applies." (Amici Br. at 21). However, even assuming Palo Alto were correct that Los Angeles' franchising process had been content -26 12 neutral, that is not the correct test for determining whether O'Brien applies. Rather, the O'Brien test applies only where "speech" and "non-speech" elements are combined in the same course of conduct and government wishes to regulate "non-speech" aspects for a purpose unrelated to communication. u.s. v. O'Brien, 391 U.S. at 376-77. Unless the governmental regulation in question is aimed at the non-communicative aspects of an action, it is unconstitutional absent a showing of a "clear and present danger" or equivalent concern. Palo Alto's own quotation from Professor Tribe establishes this 12 Preferred vigorously contends that Los auction process was in fact content-based. A review of Los Angeles' RFP documents (which, of course, Preferred was not even permitted the opportunity to bring before the District Court because itR case was dismissed on a Rule 12(b)(6) motion) would reveal a whole host of questions and requests for information about the "proposed programming" of the bidders. In fact, the final "franchise ordinance" contains specific requirements that Los Angeles' selected operator provide particular 9rO]ramming on particular channels. (Exhibit D to Palo Alto's Brief at 9-10). By the very nature of a process which places government in the role of deciding who shall speak, content-based decisions are almost inevitable. The RFP process acts in part as a screening device, permitting government to make subjective and unreviewable decisions based upon philosophy and viewpoint. For example, it is not likely that Los Angeles would have ultimately selected a company owned by individuals had long publ i cly demanded the ous ter of the Hayor and the City Council members (or an individual who believed that sports should be seen in person and not on television, or one who believed in limiting television to non-violent programming). By putting itself in the position of asking about and selecting between programming proposals, Los Angeles insured that it would make a content-based choice. The problem is fundamental --government should not be choosing at all. Tow Decl. [Appendix 5J at par. 34-447 Lee Decl. [Appendix 6J at par. 30-49. -27 point. ( i\i1 Lei B r. t 1 <1 - 2 0) The Supreme Court :--tas evolved bol:")1isti.:lct'l.ppro7:'1ches to the resolution of first amendment claims: two correspond to the two ways in v.fhich government may 'abridge' speech. If a government regulation is aimed at the communicative impact of an act, analysis should proceed along what we will call track one. On that track, a regulation is unconstitutional unless governnent shows that the message being suppressed poses a 'clear and present danger,' a falsehood, or otherwise falls on the llnprotected sieie of one of 1i :l',H ;:11:! ::::nrt has drawn to distinguish those expressive acts privilege,1 by the i t"st. rl.lendnent from tflC)se t:) :F)vernment regulation with only minimal due process scrutiny. If a government regulation is aimed at the noncommunicative impact of an act, its analysis proceeds on what we will call track two. Tribe, American Constitutional Law at 582. As the Supreme Court recently made clear, Tribe is correct on this point: [GJovernment has legitimate interests in controlling the non-communicative aspects of the medium, Kovacs v Cooper, but the Fi r s tt'11 Fourtee;"1.th AJ-;1enlments- tor(3close a Si.1U.,"-J interest in controlling the communicative aspect3. Metromedia, Inc. v. San Diego, 453 U.S. 490, 502 (1981) (plurality op'n.). As is discussed more fully below, the interests which Palo Alto asserts are directed toward "controlling the communication aspects." This is not a case about illegal conduct. It does not involve illegal draftcard burning (O'Brien), nor does it concern the conduct of illegally sleeping in a Park (Clark v. Community For Creative Non-Violence, U.S. - 2:1 posting of signs on non-public forum utility poles (City Council of Los Angeles v. Taxpayers For Vincent, u.s. 52 U.S.L.N. 4594 (.'-1ay 15, 1984)). Those were all acts which no one was allowed to do. In each of those cases, the conduct in question was illegal for anyone and everyone. In contrast, the placement of wires in public rights-of-way is not illegal for everyone: public utilities do it, the city's "franchised" cable company does it, and very probably many others do it after they secure the normal encroachment permits which Preferred has requested but been denied. Put simply, Los Angeles has made the "conduct" in which Preferred wishes to engage (the placement of wires in public rights-of-way) illegal because and only because Pre ferred 'II i shes to di s seminate 'h . 13 througn t ose WIres. The opinion in O'Brien itself establishes that this case is not a proper one for application of the balarcing test, and that Los Angeles' actions are unconstitutional. The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. was 391 U.S. at 382. The Court then distinguished Stromberg v. 13 This fact is evidenced effectively by Palo Alto's list of "interests" which it presents on behalf of Los Angeles. Except for interes t "No. 5", each of those II interes ts II relatas directly to the quantity and/or quality of speech provided by cable companies. Only No.5 has anything to do with the non-communicative aspects of the conduct in question. -29 California, 283 U.S. 359 (1931), "since the statute there was at suppressing communication, it could not be sustained as a regulation of non-communicati ve conduct." As a of Palo Alto's "interests" establishes, at least in its opinion Los Angeles trying to "suppress" communication because the communication would be "harmful" (i.e. by adversely affecting Los Angeles' ability to extract concessions from its selected monopolist). In summary, tne test utilized for incidental infringements upon First Amendment speech-- unrelated to free expression-- does not apply to this case. Absent some reason for altering First Amendment standards --such as applies in the broadcasting area-- Los Angeles' actions towards Preferred cannot be justified any more than they could be if applied to a newspaper publisher. Ne i ther Los A!1gel es nor !?alo Al t'J prov ide any reason for altering those standards. B. The of the O'Brien Test Are Not Even if the O'Brien test did represent correct standard under which to assess Los Angeles' restrictions upon Preferred's First rights, those standards have not been met. 1. It Is Los Angeles' Interest Not Palo Alto's Guesses About Them, '.f'lic'1 '.lust he Ijenti fied Palo Alto lists five "governmental interests", which -30 it argues are served by "franchising". However, there is nothing in the record before this Court, or before the court below, to indicate whether any or all of these "interests" were sought to be furthered by Los eles in taking the alleged - - - ~ ' - - - - actions. Interests asserted as justifications for infringements upon speech must be "carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose." Metromedia, Inc. v. San Diego, supra, 453 U.S. at 510. In this case, the Court obviously has no way to know what relevance, if any, Palo Alto's asserted interests have in the context of this case. To accept such an interest without any indication that it is in fact an interest of Los Angeles, would be to invite acceptance of mere "public ra t ional i za t ions." Since Los Angeles, i tsel f, has never presented the Court with its proposed justifications, Preferred submits that the Court has no relevant interest before it to assess. 2. Palo Alto's Suggested "Interests" Are Improper One of the requirements of the O'Brien test is that "the governmental interest [be] unrelated to the suppression of free expression." 391 U.S. at 377. As noted above, four out of the five interests suggested by Palo Alto are directly related to expression, and hence are improper interest in the first place. Despite Palo Alto's (and presumably Los Angeles' ins i s tence that it cr)uld "do bet ter" than the free marketplace of ideas, the First Amendment forbids this kind of -31 interference. It is not a proper governmental goal to try to "do better". Attempts to "manage" a medium of expression are, quite simply, beyond the proper police power of a municipality. 3. "Cream Skimming II Palo Alto contends that there is some governmental interest in insuring that a cable television company which offers to serve any customer within a certain area (as determined by Los Angeles) will offer to serve every resident within that area. There are several problems with this suggestion. First, Palo Alto simply assumes that by terming a goal a "policy objective" it is entitled to obtain it. Yet cable television is not a public utility and does not provide an essential service. Television Transmission v. Pub. Util. Com., 47 Cal.2d 82 (1956). An attempt to compel service to all areas, regardless of cost, is therefore unconstitutional. Frost v. Railroad Commission of California, 271 U.S. 573, 583 (1926); Video Corp. v. F.C.C., supra, 571 F.2d at 1051. See, Cox Cable Communicatio:1s, Inc. v. Simpson, 569 F.2d 507, 518-519 (D.Neb. 1983). To the extent (if any) that such a requirement could be upheld as a reasonable regulation of a monopolist, Palo Alto implicitly relies upon the natural monopoly theory which it admits is unproven. Second, even assuming arguendo that such a requirement is otherwise within Los Angeles' power, Palo Alto suggests no reason why a less onerous alternative is not available. Los -32 Angeles could simply pass an ordinance requiring universal service. By so doing, Los Angeles would insure that any cable television operating within the South Central area would offer service to all residents thereof. This procedure \vould fulfill this purported interest even better than a monopolistic franchising process, because would be provided a choice between different companies. Third, there is no indication on this record that Preferred would be unwilling to offer service to every resident within the South Central area. Preferred is, in fact, not only willing but anxious to do so, and would already be providing such service were it not for Los Angeles' refusal to permit it. Even accepting Palo Alto's superficial description of cable television economics (Amici Br. at 22-24), any reasonable analysis of the possibility that "cream skimming" would occur must of necessity include the particular characteristics of the market at issue. A sinilar argument made by Palo Alto in the Century Federal case was totally repudiated based upon the facts in that market. Tow Decl. [Appendix 5J at Par. 13-19. Finally, Palo Alto insufficiently identifies any nexus between this policy "interest" and the exclusion of Preferred. Los Angeles already has a commitment from a cable company to provide service throughout the relevant area. Therefore, even if Preferred did not serve all areas, every resident would have access to at least one company. Palo Alto's only suggestion otherwise is a return to the natural monopoly theory which it claims not to rely on. (Amici Br. at 28). -33 4. Access Channels process as related a interest in obtaining access channels. Again, the only asserted nexus between this interest and Preferred's exclusion is the unproven suggestion that cable television is a natural monopoly. Los Angeles has already obtained access channels from one cable television operator. Therefore, Los Angeles' interest in this regard has already been fulfilled. As in the case of "cream skimming", the proper method for Los Arlgeles t:') furt:ler an interest in obtaining access channels would be to pass a :')rdinance requiring t11em. Preferred believes that any such requirement would be unconstitutional. Hiami Herald Publis'Ling Co. v. '1'0 1::' "1 i 110, 418 u.s. 241 (1974) 7 Midwest Video Corp, v. F.C.C., supra, 571 F.2d 14 at 1052-57. As discussed above in Section IV, i:1j'-1ry to Preferrei's ric)'lts Cd'1f1.)t be jclstified by the expansion of someone e1 I s 14 L.:11icated some willingness (erroneously, Preferred submits) to accept such control over programmi:1g (see, e.g., Community Communications Co. v. Boulder, 660 F.2d 1370 (10th Cir. 1981)), have required government to first establish that economic scarcity made such control a nec2ssity. Here, Palo Alto does not rely on economic scarcitJ. -1't require this Court to hold that the Los Times could constitutionally be given a government-guaranteed monopoly within Los Angeles County so long as it agreed to permit the public free access to a few pages of the paper. Finally, even assuming that the obtaining of access is a proper governmental goal, the obviously less onerous alternative available to Las would be to spend 15 public money in order obtain that "public good." Though the City may have a valid interest in raising revenue (or reducing expenditures), it may not do so by inordinately burdening First Amendment speakers. Minneapolis Star v. Minnesota Commissioner of Revenue, U.S. , 75 L. Ed 2d 295 (1983); Grosjean v. American Press Co., 297 U.S. 233 (1936). In essence, Palo Alto argues that Preferred should be excluded in order to finance public access channels that neither the City nor the public are will ing to pay for. 6. Computer-to-Computer Data Palo Alto suggests that Preferred's exclusion could be justified by the "percieved risk" that certain computer-to- Palo Alto's argument essentially boils down to the follo',dng: "By excluding Preferred and all other cable television operators, Los can guarantee a monopoly to one selected person. Since that person will then make monopoly profits, he will agree to give some of those profits to the City or to the public in exchange for protection from competition. This will save the City money. " -35 15 computer data transmission services will not develop "quickly enough." (Amici Br. at 26). Preferred could hardly have imagined a better illustration of Palo Alto's misunderstanding of the First Amendment. Palo Alto simply identifies something it thinks would be "nice", states that a city will "forfeit the necessary to obtain" (ld. at 29) this nice thing unless it provides a government protected monopoly to one selected speaker, and then argues that the First permits the exclusion of all speakers but one because of the policy objective of "getting something nice". This exact argument could be made in support of the monopolization of any medium of speech. A bookseller might well be willing to subsidize a free lending library for the poor; a government-sanctioned monopoly movie theater might well admit senior citizens at 75% off regular ticket prices; and a government-franchised newspaper would certainly be willing to provide free guest column space for the Mayor and City Councilmembers. Under Palo Alto's theory of the First Amendment, no content-neutral burden upon free speech would ever be held unconstitutional unless it was completely irrational and arbitrary. Each of the objections described in the preceeding two subsections also apply with full for2e to Palo Alto's claimed interest in data transmission. There is no proper nexus between Preferred's exclusion and the interest sought; there is no reason why a generic, non-discriminatory ordinance could not fulfill the purported interest; and this interest could properly be met in a less restrictive fashion by the direct -36 purchase or subsidization of such services. Furthermore, the provision of most data transmission services by a cable television op,=r3.t)( i.s \vithin the State of California. Cal. Public Utility Commission Decision No. 84-06-113 (June 13, 1984) In addition, a municipality's attempts to force upon a cable television operator the provision of such common carrier functions amounts to an unconstitutional taking violative of the Fifth Amendment. Frost, Video, Cox Cable, all supra. 7. DisruptlQn of 5-")f-;lay Lastly, Palo Alto asserts that Los Angeles has an interest in minimizing disruption of its rights-of-way. This is undoubtedly true, and in fact amounts to the only non-expression related interest proposed by Palo Alto. H042ver, Palo Alto seriously misunderstands the significance of this interest :tn1 ,-=xtent to whic''1 Pi rst A:nendment permits reliance upon it to b'-.lxden free speech. Hhat Palo Alto fails to ,:'L1:: .1,l')i,-i,,; ':) ,,'11:::'1 Preferred desires access are a "public orc1u for communication". Cinevision Corp., supra, 745 F.2d at 569-71. In Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 44 (1983), the Supreme Court described three types of public forums, with accompanying public access rights ti1at vary "depending on the character of the property at issue." The first category includes areas such as streets and parks, "which by long tradition or by government fiat have been -37 devoted to assembly and debate." ld. at 45. The second category includes public property, such as municipal auditoriums, which, though not traditionally used r a particular type of communicative activity, have been for use by the public as a place for SUC:1 "tel: -.Ii ty. 44-45; Cinevision Corp., supra, 745 F.2d at 569-71. The third category of public property is that "Hhich is not by tradition or designation a forum for public communication." ld. The identical broad free speech rights apply to communication in either of the first tHO categories, Cinevision Corp. at 16 570_71. property within either the first or second categories of public forums, this Court need not decide cv 1 11c:h 1:1c1udes t:1e public rights-of-way at issue in this case. There can be no real doubt the Los fu:1geles has designated those rights-of-way for use by cable television communicators; it has already gone . 17 so far as to grant permission to one such communlcator, 16 EV2a in thO'! third cate9:Jry,vhic:l includes SUC 1 1 property as county jails v. Florida, 385 U.S. 39 (1966)) and military bases (Unit3d v. 710 F.2d 1410 (9th Cir. 1983)) the government is limited to "reasonable" regulations designed to reserve the property for its intended use. Cinevision Corp., supra at 569-70 n.8. 17 It is irrelevant that L:::>s may 11ave "intended (Le. desire1) t:1d.t the public rights-o:-vfay be us by o:11y one cable television operator. Cinevision Corp., supra at 570. (City permission, even though only to a single entity, to (Footnote continued on next page) -38 thus the compatibility of such use. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). In addition, the Cal i fornia Legi s lature has "opened" the forull 0 f publ ic uti 1 i ty b.cili ties for ;13e by ca1;le television operators allover the State, by Cal.Pub.Util. Code Section 767.5, which declares that such use is the consumption of a "public utility California". ( S u bd . ( b) ) In short, at least until Los Angeles and the State of California withdraw those rights-of-way from use by the public, they remain a public forum for use by cable television operators. The rules governing access to public forums is that: II [G]overnment fnay '10:' prohibit all communicative activity. For the state to enforce 3. content-basei 8xcl:..13iYl it ,,'lS!: it'l regulation is f18c''!')?1. ... I t:) :';'3rve a compelling state interest and that it Ls narrowly irawn to achieve that end. The state may also enforce regulations of the time, place, and ,Ud:lrlf3C ;)f expression \-Jhich are 1Xe narrc:Mly t'3.il')"Ce"1 ::) .. ';_]"'1: government interest, and leave open alternative channels of communication." Moreover, in formulating a content-based or a time, place, and manner regulation, government must select the means of furthering its interest that is least restrictive of First rights. Footnote continued) communicate to tiV3 public, transformed public rty int;) .3. public forum for .:;!CprI3ssive ,'3.ctivity). The thrust of the public forum doctrine is precisely that governments are not permitted tG differentiate between different members rJ:( segments of: -'3'1 including the public rights-of-way, than those imposed by other First Amendment speakers. It (CT 1 at Par. 6).19 This allegation must be accepted as true at this stage in the pleadings. Moreover, such a concept makes newspaper vending boxes on public rights-af-way permanently restricts p31estrian traffic, invites litter problems and entails repeated traffic disruption every morning when a truc'<:: stops toee U 11 tht=ll. television wires are indistinguishable from each other and the various utility facilities adjacent to them7 installed cables are virtually maintenance-free. A::;lib reference to "mi:<imizing disruption" is, quite simply, legally insufficient to enforce the total exclusion of a particular speaker. "in excuse to li.:1it to 'Joe the number of news!)i'l.pers/ insist upon controlling the "monopolist" that it had itse1.:: crea ted) . disruption. The truth is that the "disruption" aspect of cable television dissemination is simply a "red herring." As is Once again, this allegation has already been demonstrated to be true in the Century Federal litigation. See Exhibits 2-4, that, ..;it:1!l.,rhr r 1 (;).',:)le televisL)n constclction methods, t:,ere is no signi ficant added disrupt iO,1 or inconvenienc3 from having t./O, one, cable television companies construct their systems at the same time. Furthermore, Exhihit 4 also that public rights-of-way more than do cable television companies. -41 19 apparent from the four other "interests" proposed by Palo Alto, the real purpose in conducting a "franchising process", and prohibiting speech by the "losers" and "non-participants," is to provide a rneDlod for a city to use its practical control over public rig"':1ts-of-way :l.S a '''.Je'1p:)n'' '",ith 'tThich to (J':d'1 control over aspects of speech completely to the U39 of those rights-of-way. Community C.").n"1u'1ic'3.tions 2'1. v. Boulder, supra, 630 F.2d at 719 (Markey. C.J. dissenting). It is precisely such a process that the "public forum" doctrine precludes. VI. Palo Alto suggests two reasons why this Court should , < a f fi LU the i s iO(l::>f the court helo,,",. nas merll... Palo Alto enunciates its novel view of the:! First rlJ.'":lendment, but provides no reason for applying its s,lg99S tions to Prefen:',':!l but not to any other First Amendment spea"8c. IIII 111/ 1/11 11// 111/ IIII 111/ 11// 1/11 /1/1 -42 Alto's ar3uments, supported hodge-podge of inapposite cases, are reductio ad absurdun: its theories are wrong when applied to newspapers, to book-sellers, to demonstrators, and to every other type of speaker. They are equally when to the facts of this case. Respectfully submitted, / / 1/ (" / ;? Dated: /' Robet't ',1. Br CifJSOn
1121 "L" Street, Sui te 803 Sacramento, California 95814 (916) 447-2000 Attorneys for Appellant -43