Document ID: A:\CRUZ.TXT RUBEN CRUZ, Plaintiff, v. MAURICE A. FERRE, as Mayor and Chairman of the Miami City Commission, etc., et al., Defendants, and MIAMI CABLEVISION, a joint venture consisting of AMERICABLE OF GREATER MIAMI, LTD., etc., et al., Intervenors-Defendants; HOME BOX OFFICE, INC., etc., Plaintiff, v. MAURICE A. FERRE, as Mayor and Chairman of the Miami City Commission, etc., et al., Defendants No. 83-330-CIV-WMH UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 571 F. Supp. 125; 9 Media L. Rep. 2050 August 2, 1983 COUNSEL: Ellis Rubin Law Offices, P.A., Miami, Florida, for plaintiff Rubin Cruz. Terry S. Bienstock, Esq., Miami, Florida, for plaintiff Home Box Office, Inc. Jose R. Garcia-Pedrosa, Esq., City Attorney, City of Miami, Miami, Florida, for defenda Kenneth M. Meyers, Esq., Miami, Florida, for intervenors-defendants Miami Cablevision. JUDGES: Hoeveler, District Judge. OPINIONBY: HOEVELER OPINION: [*126] MEMORANDUM OPINION THIS CAUSE came before the Court on motions for summary judgment filed by both sides. The issue presented in this case is whether the Defendant City of Miami may constitutio the procedures it imposes and the material it regulates, is in harmony with the First and While the Court is sympathetic with the defendants' attempt to protect the perceived de pite good intentions, however, the means used by the City exceed the limits of proper cons ech. Moreover, the methods adopted by the City to enforce the regulation and exclusion of the ordinance -- violate the notion of fairness implicit in one's right to due process of Both plaintiffs and defendants have moved for summary judgment. (See Plaintiffs' uncha y the joint summary judgment motions and the absence of response to the plaintiffs' sugges d. Fed. R. Civ. P. 56. The City shall be permanently enjoined from enforcing these secti g the procedures and methods by which that ordinance is enforced. These are provided for i BACKGROUND On October 19, 1981, the City of Miami adopted Ordinance No. 9223, effective November 1 suant to Ordinance No. 9223, the City enacted Ordinance No. 9332 ("the licensing ordinance of the licensing ordinance reiterated a similar provision in the cable television ordinanc . . . agrees to comply with all applicable general laws, resolutions and ordinances prese On January 13, 1983, the City enacted its third cable ordinance, Ordinance No. 9583, wh ion. The ordinance states, in pertinent part: Section 1. No person shall by means of a cable television system knowingly distribute b Section 2. The following words have the following meanings: . . . (f) The test of whether or not material is "obscene" is: (i) whether the average person , in a patently offensive way, sexual conduct specifically defined by the applicable state (g) "Indecent material" means material which is a representation or description of a hu The indecency ordinance further provides that all complaints under Section 1 shall be b ther there is probable cause to believe that a violation of section 1 has occurred. Id. s es may present evidence, and the proceedings must be transcribed by a court reporter. Id. purpose of the hearing is to provide the licensee with an opportunity to refute the alleg on, must make his finding and decision. Id. sec. 3(e), (h). If the City Manager determine [*128] The indecency ordinance applies only to cable television. It does not apply t in Miami, and may have programming generally similar to Cablevision's. This action for declaratory and injunctive relief was filed on February 9, 1983. Subse ndated intervention. These contracted obligations included the provision in Cablevision's permitted to intervene, Cablevision moved to withdraw, stating that it elected not to tak THE CABLE TELEVISION MEDIUM Unlike broadcast television, which sends over-the-air signals, cable television operate s' homes. Through the use of a converter, cable television can increase the channel capac Cablevision is presently the sole Miami cable television licensee. It provides basic c to offer subscribers up to six private television services for a separate fee. Subscriber One private service currently offered by Cablevision is Home Box Office, Inc. ("HBO"). ing events, and special programs, and is provided 24 hours a day, seven days a week. By a HBO shows films rated "G," "PG," or "R" by the Motion Picture Association of America, a Monthly HBO program guides list the times and dates of all program offerings, and they These are available from Cablevision free of charge. CASE OR CONTROVERSY For the Court to properly exercise jurisdiction in this matter, there must be a genuine 61 S. Ct. 510, 85 L. Ed. 826 (1941); International Society for Krishna Consciousness v. E A case or controversy exists when there is "a substantial controversy, between parties Ct. at 512, 85 L. Ed. at 829. In this action, the challenged ordinance has not yet been e merican Booksellers Association v. McAuliffe, 533 F. Supp. 50, 54-55 (N.D. Ga. 1981). What 371 U.S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405, 418 (1963), "The threat of sancti viewers to receive, Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L. Ed. .C. 1977). The threat, therefore, creates a genuine case or controversy. STANDING Once a controversy is shown to exist, the plaintiffs must also establish "a personal st In the first amendment area, the concept of standing has been broadly construed in favo nts may challenge statutes even though their own rights are not violated so long as the ex An anticipatory challenge such as this is permissible "where the allegedly unconstituti oksellers Association, 533 F. Supp. at 55. While plaintiffs' injuries may not be readily apparent, the chilling effect of the inde and power of the City. Plaintiff-distributor HBO may be discouraged from pursuing program the plaintiffs. See, NAACP v. Button, 371 U.S. at 433, 83 S. Ct. at 338, 9 L. Ed. 2d at 4 imate exercise of their first amendment rights provides plaintiffs with standing to bring SUMMARY JUDGMENT Summary judgment may be granted pursuant to Fed. R. Civ. P. 56 when there are no materi The parties in this action have filed extensive memoranda and orally argued the issues The Court recognizes that caution is required when an ordinance is being challenged onl v. Harris, 401 U.S. 37, 52-53, 91 S. Ct. 746, 754-755, 27 L. Ed. 2d 669, 680-81 (1971). HB ect to a narrowing construction that would preserve its validity. Erznoznik v. City of Ja It is difficult to conceive, however, of any construction, which would save this ordina alls [*130] for an effort to save as much as possible, that effort is unrewarding in t unnecessary federal presumption upon municipal matters of concern. THE FIRST AMENDMENT The first amendment states, in pertinent part, "Congress shall make no law . . . abridg 2, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), encompasses a group of rights, several of which h t, West Va. Board of Ed. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628 (1 d. 155 (1939); and the right to receive information or ideas. Stanley v. Georgia, 394 U.S Speech has long been viewed as a fundamental value in our country. The thinking of Mr. "Of that freedom (speech) one may say that it is the matrix, the indispensible condition, , 327; 58 S. Ct. 149, 82 L. Ed. 288, 293 (1937). The same high regard for first amendment freedoms led Mr. Justice Brandeis to state: "Those who won our independence believed that the final end of the State was to make men f of political truth . . . that public discussion is a political duty; and that this should ). Not all communications, however, are protected by the first amendment. Speech which inc S. Ct. 710, 11 L. Ed. 2d 686, L. Ed. 2d 686 (1964); fighting words, Chaplinsky v. New Hamp all lie entirely outside the umbrella of first amendment protection. Obscenity is unprotected because of its minimal social value and offensiveness to conte 5, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) the scope of permissible obscenity regulation h A state offense must also be limited to works which taken as a whole, appeal to the prurie tific value. Id. at 23-24. Indecent speech, however, does not fall within the confines of the definition of obscen e distribution of "indecent" materials, the ordinance sweeps within its bounds "speech" su lly defective. See Community Television of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1 The defendants oppose this analysis and argue that the leading case on the regulation o active case upon which to shape their argument. However, a careful consideration of Pacifi In Pacifica, a twelve-minute monologue by comedian George Carlin was aired by a radio s e broadcast, complained to the Federal Communications Commission (FCC). The FCC found the The Supreme Court found that even though indecent speech was afforded some constitution e content and the context of speech are critical elements of first amendment analysis. Id be "vulgar", "offensive" and "shocking." Id. 438 U.S. at 747, 98 S. Ct. at 3039, 57 L.Ed The Court noted that different media forms present different first amendment problems a ical scarcity of available frequencies is afforded more limited constitutional protection , moreover, is uniquely accessible to children. Pacifica, 438 U.S. at 749, 98 S. Ct. at 30 The Pacifica Court stated that its decision in that case was to be narrowly construed. Consideration of a host of variables (is required): The time of day . . ., the content of 41, 57 L. Ed. 2d at 1094 (footnote omitted). The ordinance subject to review by this court prohibits far too broadly the transmissio e decision in Pacifica. The rationale of Pacifica applies only to broadcasting. The mediu A comparison of cable and broadcast The comparison of the broadcast and cable television media reveals the extent to which rt explored some of the many differences between broadcast and cable television. In Roy City, the Court found that a City ordinance regulating the transmission through charted the dissimilarities of cable and broadcast: [*132] Cable Broadcast 1. User needs to subscribe. User need not subscribe. 2. User holds power to cancel User holds no power to subscriptions. cancel. May complain to F.C.C. station, network, or sponsor. 3. Limited advertising. Extensive advertising. 4. Transmittal through wires. Transmittal through public airways. 5. User receives signal on User appropriates signal from private cable. the public airwaves. 6. User pays a fee. User does not pay a fee. 7. User receives preview of User receives daily and weekly coming attractions. listing in public press or commercial guides. 8. Distributor or Neither distributor nor distributee may add service and expanded spectrum of or signals or choices. signals or channels and choices. 9. Wires are privately owned. Airways are publicly controlled. Id. In Home Box Office Inc. v. FCC, 567 F2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829, 98 S v. FCC involved the permissible scope of FCC regulation of cable television programming an were not necessarily so as applied to subscription broadcast services. The Court stated: "The First Amendment theory espoused in National Broadcasting Co. and reaffirmed in Red Li umpiring role for government -- is absent." HBO v. FCC, 567 F.2d at 44-45 (footnote omitte Significantly, in addition to offering greater quantitative choice, cable also provides l J., concurring). It is totally up to the user to decide to bring Cablevision into his h nly consult the monthly viewing guides for information. And to protect children or other i oid the potential harm to minor or immature viewers sounds the death-knell of Pacifica's a Having determined that Pacifica does not control, this Court finds that Miller, which l ". . . Miller establishes the analytical boundary of permissible state involvement in the The provisions of the ordinance regulating indecent material exceed the strict limits o [*133] DUE PROCESS OF LAW Plaintiffs also contend that the methods and procedures which provide for the enforceme The due process clause of the Fourteenth Amendment provides that a state may not depriv e.g., Ohio Bell Tel. Co. v. Comm'n, 301 U.S. 292, 57 S. Ct. 724, 81 L. Ed. 1093 (1937). D 8 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1971). It is undisputed that Cablevision's l e ordinance are constitutionally sufficient. The defendants contend that the ordinance's mandatory pre-discipline/deprivation hearin . 780, 786, 28 L.Ed 2d 113, 119 (1971). Due process requires, however, not only that certain procedures such as hearings be pro he same individual sat as both judge and grand jury). The opinion in Murchison is instruc A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course no man can be judge in his own case. It would be very strange if our system of law permit The defendants point out that the mere combination of investigative and adjudicative fu rue, is incomplete: That the combination of investigative and adjudicative functions does not, without more, c the risk of unfairness is intolerably high. Id. at 58, 43 L. Ed. 2d at 730. This statement is dispositive in this case. The indecency ordinance permits the City M ake a determination, and issue sanctions, all in an area of moral judgment that might well onsequently finds that these procedures, by concentrating the functions of complainant, ju OTHER CLAIMS The plaintiffs challenge the ordinance on various other grounds not considered in this The plaintiffs' claim that the ordinance violates the equal protection clause of the Fo "indecent" speech through cable television and not other forms of communication deprives The standard of judicial review of equal protection claims depends on the invidiousness ley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). Strict scrutiny requires that t , 65 L. Ed. 2d 263 (1980). The relationship between the means used by the government to ac The indecency ordinance applies specifically to transmissions of "indecent" and "obscen In this case, the indecency ordinance omits the necessary relationship between the mean e City. The impact of indecent material presented by cable television on public morality The ordinance applies only to cable transmissions. It does not apply to other forms of City material that may be prohibited from cable television under the indecency ordinance. CONCLUSION A somewhat more detailed discussion of the City's undertaking seems appropriate. In so unds us. From antiquity, the smut peddlers have been with us. Hadrian (AD 76-138) one of meat attractive to flies." (Memoirs of Hadrian, YOURCONAR, Marguerite; Farrar, Straus and rd with each new attempt to enlarge the ambit and prurience of their offerings. The potent well meant effort to regulate or eliminate "indecency." While, our collective zeal to ste pursuit of the most generous view of "free" speech in this area, we exercise caution. By st Amendment speech freedoms. The suggestion that much of what we see today on our newsstands, in some book stores an tly justified. It is difficult to predict where our tolerance of licentiousness will end. tion which in its reach exceeds the dangers they contemplate and which they have the power 394 [*135] U.S. at 565, the Court stated: If the first amendment means anything, it means that a State has no business telling a man I do not suggest by reference to Stanley that government may have no say about indecent It does not apply here. Passing the question of whether the state has pre-empted regulation of obscenity, no on Finally, a fitting conclusion to this case is a reference to the Supreme Court conclusi "In concluding that this ordinance is invalid, we do not deprecate the legitimate interest tempts to regulate expression. Where first amendment freedoms are at stake we have repeat The defect of overbroadness will not be solved by redrafting. The procedural problems Therefore, the motions for summary judgment filed by plaintiffs are granted; the motion ordinance referred to.