Document ID: A:\CRUZ2.TXT Ruben CRUZ, Plaintiff-Appellee, Home Box Office, Intervenor-Appellee, v. Maurice A. FERRE, etc., Howard Gary, etc., the City of Miami, Fl., etc., Defendants-Appellants, Americable of Greater Miami, Ltd., et al., Intervenors No. 83-5588 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 755 F.2d 1415; 57 Rad. Reg. 2d (P & F) 1452 March 22, 1985 PRIOR HISTORY: Appeal from the United States District Court for the Southern District of Florida. COUNSEL: Jose R. Garcia-Pedrosa, City Atty.; John C. Copelan, ACA; Gisela Cardonne, ACA; Amicus Curiae -- State of Utah Charles A. Hobbs, Hobbs, Straus, Dean & Wilder, Washingt Ellis Rubin, Miami, Florida, for Appellee. Terry S. Bienstock, Frates, Bienstock & Sheebe, Miami, Florida, Faith Wender, Los Angel William M. Grodnick, c/o Myers, Kenin, Levinson, Ruffner, Frank & Richards, Miami, Flor Michael R. Klipper, MPAA, Inc., New York, New York, Tench C. Coxe, Troutman, Sanders, L Robert St. John Roper; Brenda L. Fox; Carol A. Melton; Michael S. Schooler; Timothy C. JUDGES: Hatchett and Clark, Circuit Judges, and Stafford, * District Judge. * Honorable William H. Stafford, Jr., Chief U.S. District Judge for the Northern Distri OPINIONBY: STAFFORD OPINION: [*1416] STAFFORD, District Judge: This cause involves a challenge to the constitutionality of a Miami ordinance regulatin f "indecent material" constitutionally overbroad. Additionally, the district judge held th both first amendment and due process grounds. FACTS AND PROCEDURAL HISTORY City of Miami Ordinance No. 9223, adopted on October 19, 1981, sets forth the overall s joint venture of Americable of Greater Miami, Inc., and Miami Telecommunications, Inc., a On January 13, 1983, the city enacted a third cable ordinance, Ordinance No. 9538. Thi of this ordinance provide: Section 1. No person shall by means of a cable television system knowingly distribute by (f) The test of whether or not material is "obscene" is: (i) whether the average person, a n a patently offensive way, sexual conduct specifically defined by the applicable state la epresentation or description of a human sexual or excretory organ or function which the av Additionally, section 3 of the ordinance provides procedures for complaints alleging vi anager is empowered to initiate such claims himself. Id. All complaints, whether received ). If the city manager determines that such probable cause exists, he must give written n cted by the city manager. Id. sec. 3(c). At the hearing, which is to be "informal," the ). The city manager presides over the hearing and governs the admissibility of evidence. thin ten days after the conclusion of the hearing, the city manager is to make his written nce are suspension of the license for a period of time not to exceed nine days, or termina This action for declaratory and injunctive relief was filed in February 1983 against ap he ordinance void on its face and an injunction restraining the enforcement of the ordinan withdraw, but its motion was denied. Cablevision did not take a position in the lower cou Because the facts of this case were not in substantial dispute, all parties filed motio judge granted plaintiffs' motions on August 2, 1983. The city was permanently enjoined fro e enforcement procedures provided for in section 3 of the ordinance. Appellants challenge the district court's resolution of the first amendment and due [ e National Cable Television Association, Inc., and the Motion Picture Association of Ameri - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Appellants do not challenge the district court's findings regarding the existence of - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - FIRST AMENDMENT The United States Supreme Court has long recognized that the first amendment's prohibit S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). The Court has recognized only limited catego 5 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); defamation, New York Times Co. v. Sulliv 0 (1969); and obscenity, Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d endment and set forth the current permissible limits of regulation. However, the Miller c ully limited." Id. at 23-24, 93 S. Ct. at 2614-2615. Appellees did not challenge the Miami ordinance's definition of "obscene" material or t forth in Miller.) Rather, appellees challenged the provisions of the ordinance which attem irst, the ordinance does not require that the challenged materials, "taken as a whole, app not have serious literary, artistic, political, or scientific value." Id. Therefore, if ma Court's obscenity cases. Appellants' primary argument on appeal is that authority for the city's regulation is f e-minute monologue by comedian George Carlin entitled "Filthy Words." The monologue was re r heard the monologue while travelling in his automobile with his young son. The narrow i 2, 98 S. Ct. at 3036. Five members of the Court concluded that broadcasting of indecency c First Amendment protection." Id. at 748, 98 S. Ct. at 3040. The Court found two factors re ave established a uniquely pervasive presence in the lives of all Americans" and that "pat individual's right to be left alone plainly outweighs the First Amendment rights of an int t was concerned with "the ease with which children may obtain access to broadcast material . at 749-50, 98 S. Ct. at 3040-41 (quoting Ginsberg v. New York, 390 U.S. 629, 639-40, 88 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Because the broadcast audience is constantly tuning in and out, prior warnings cannot comp uage is like saying that the remedy for an assault is to run away after the first blow. Pacifica, 438 U.S. at 748-49, 98 S. Ct. at 3039-40. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Pacifica Court, however, made a point of "emphasizing the narrowness of our holding the audience might affect whether a particular broadcast could be regulated. Id. n3 Moreo - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 With reference to the Court's opinion, Justice Powell, joined by Justice Blackmun, s e in the audience, nor from broadcasting discussions of the contemporary use of language a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The district court, after "a careful consideration of Pacifica," found Pacifica to be " m with broadcast television. A Cablevision subscriber must make the affirmative decision programming. Additionally, the district court noted, the ability to protect children is - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Judge Hoeveler gave a brief description of the cable television medium and the natur 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. Cruz v. Ferre, 571 F. Supp. at 128. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*1420] In reaching his conclusions, the district judge relied in great part upon two y City and Wilkinson are the only other federal cases to have adjudicated the applicabilit presence on public airwaves at a time when it could be available to children, audience su levision, id. at 1167, n5 the Roy City court examined these differences in greater detail ponent and found that cable television, unlike broadcast television, is not pervasive. Id - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 This list was reproduced in the district court's opinion. Cruz v. Ferre, 571 F. Sup - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Although we recognize the complicated and uncertain area of constitutional interpretati this case. Pacifica, it must be remembered, focused upon broadcasting's "pervasive prese 3040. The Court's concern with the pervasiveness of the broadcast media can best be seen bscriber must affirmatively elect to have cable service come into his home. Additionally, ecision whether to continue to subscribe to cable, and if dissatisfied with the cable serv stem, where there is no possibility that a non-cable subscriber will be confronted with ma cable attached to their television sets. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Appellants seem to want to extend Justice Steven's "pig in the parlor" analogy. See ed to keep the pig out of the parlor"). It seems to us, however, that if an individual vo - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Probably the more important justification recognized in Pacifica for the FCC's authorit st material . . . justifies special treatment of indecent broadcasting." Id. at 750, 98 S. he ability to manage the broadcast media. Again, parents must decide whether to allow Cab rograms containing "vulgarity," "nudity," and "violence." Additionally, parents may obtain ides these without charge to subscribers. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Justices Powell and Blackmun seem to have placed particular emphasis upon this justi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Pacifica represents a careful balancing of the first amendment rights of broadcasters a the balance weighed in favor of the FCC. Because we determine that under the facts of the cable to this case. n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Two It is argued that . . . the Commission's holding in this case is impermissible because it ing the adult population . . . to [hearing] only what is fit for children." Butler v. Mich mission powerless to act in circumstances such as those in this case. Pacifica, 438 U.S. at 760, 98 S. Ct. at 3046 (Powell, J., concurring). n9 Appellants and the State of Utah apparently argue that the limited number of station and in other Supreme Court cases such as Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, The opinions of my Brothers Powell and Stevens rightly refrain from relying on the notion it has never been held to justify censorship." Pacifica, 438 U.S. at 770 n. 4, 98 S. Ct. at 3051 n. 4 (Brennan, J., dissenting) (quoting - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Our conclusion regarding the applicability of Pacifica to the facts now before us is bu ts Corp., 463 U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983), the Court pointed out tha n. Id. 103 S. Ct. at 2884. Bolger involved a challenge to a federal statute prohibiting u e likely to find offensive, stating: "The First Amendment 'does not permit the government mission, 447 U.S. 530, 542, 100 S. Ct. 2326, 2336, 65 L. Ed. 2d 319 (1980)). The governmen jects such as birth control. The Court, while recognizing that this interest was "undoubt . . . is more extensive than the Constitution permits, for the government may not 'reduce , 1 L. Ed. 2d 412 (1957)). The Court distinguished the facts in Pacifica, finding the rece Even if we were to find the rationale of Pacifica applicable to this case, we would sti terials through cable television. The ordinance's prohibition is wholesale, without regar unt for the variables identified in Pacifica: the time of day; the context of the program on envisioned by the Pacifica Court. However noble may have been the city's intentions, we are constrained to recognize the e television system exceeds these limitations. n10 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 We note that broadcast stations which are also carried on Cablevision are still sub . Ferre, 571 F. Supp. at 128. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - DUE PROCESS The district court also held that the procedures for the enforcement of the ordinance, functions of complainant, jury, judge and 'executioner' in one person" created a "risk of nd adjudicative functions does not of itself amount to a due process violation. However, efore the court present an intolerably high risk of unfairness, the district court found s the neutrality and impartiality of Solomon." Cruz v. Ferre, 571 F. Supp. at 133. We find ourselves in agreement with the district judge. The ordinance involves sensiti y must adhere to more narrowly drawn procedures than regulation of ordinary commercial act Ed. 2d 413 (1980). "The Fourteenth Amendment requires that regulation by the States of obs and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S. Ct. 631, 637, required tools such as "a judicial determination in an adversary proceeding," Freedman v. S. 546, 562, 95 S. Ct. 1239, 1248, 43 L. Ed. 2d 448 (1975). While it would be inappropriat ly provided in the ordinance are not sufficient to protect the vital interests at stake. CONCLUSION For the reasons stated herein, we hold that the findings of the district court were cor - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 Because of our resolution of the issues in this appeal, we find it unnecessary to a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -