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HomeMy WebLinkAboutM-85-0561F i HOaa.S. S TAUS. DEAN WILDER LAW OFFICES FEDERAL BAR BUILDING 1819 H STREET, rj W SUITE dOu WASMINGTCIN, D C 2000iS CAQOLL 9ARBEROMC' S 4080 OrAht (OC Nil) 1202) 7tl3 5100 ':-ARLES A n000S 10CI r'RANCES L •IVNN IUL OW MIARSMA .05111N• � .•1 ' .AMCS S RICE tilR Awl .1OSER»1 8141.N I.L 1L1 April 30, 1985 f-EGOGRE - bII-tl U� IUD. MG1 ..ERA, C ST 41L11510,• W W1L1iCM I.�N u. �. •1 MICNAEL P y140bz 11M •(1 .ENNETM. (WljnyuLA ICJ I. i41 ,.. Of CGuN SEL ROBERT M/•ATrtl uQ VCpNMtNT•I. •tt •INS �. �.UPDIN•iUR Iftat •OMITTI a 1„ •1.1 dlk041 �I f Honorable Lucia A. Dougherty y Miami City Attorney -; 169 E. Flagler, Suite 1101 Miami, Florida 33131 PORTLAND C)FFICE ,e! N E rM•RL AVEN11E SU-TE 425 NIJRYLitiO JNlIiJN •i 723e 15UlJ Gd2 bJS� NEW ME? iCO AFFILIATE AGIn •,•I. •MBt NG c3RLi5s AMAa.It.T s LL:4ERS 347 t•yi - ACE •�'Lt.uL -I J Hl,• 447 ':•tlf• FE ',,,% L.,co d750i 19C.51 dad dvld •NU ydj FLvRiGA 4FFILIATE 1WgH0UE1. 5•UEP 6 FEFIRELL 2651 U1 AT. FL vEH•L n11Jn W•t' N .', ofC:• I,6GlS F ART L •vOLi G•LC �LC)HIGA J3330 1]G51 -,65 A990 RE: Cruz v. Ferre: Petition for Certiorari in the United States Supreme Court Dear Ms. Dougherty: You have requested that we advise you on whether you should petition the United States Supreme Cu_urt to review the recent decision of the Eleventh Circuit Court of Appeals in your case, Cruz v. Ferre. In our opinion, na3rd on the present Ordinance, your chances of being grantEo certiorari by the Supreme Court are not very good, mainly hecause of tht= spoiling influence of the Due Process issue. The Court dues not like to ..=6 decide one Constitutional issue if there is another Constitu- tional issue which the court below probably correctly decided and which was sufficient to dispose of the case entirely (as was }' true in your case, in our opinion). If certiorari were granted, the chances are the Court ¶�# would go off on the Due Process issue (and probably rule it j against you), and not reach the First Amendment issue; but if they did reach the First Amendment issue, in our opinion your chances are only fair to win that issue. We are sorry we can't be more optimistic, but that is our carefully considered opinion. If the City wishes to pursue regulation of cable inde- cency, our advice would be to amend the Ordinance (1) to correct }, the Due Process problem, and (2) to allow a late evening time period in which questionable but non -obscene cable programs ' could run without restrictions. If both amendments are made, in our opinion you have a good, fighting chance (better than 50-50) 10 • 0 MnOtab14 Lucia A. boughettY April 30, 1985 Page Two to prevail in the Supreme Court. If only the Due Process amend- ment is made, we think your chances on The First Amendment issue with the present Ordinance are only fair (less than 50-50). Enclosed is our legal analysis. Please call us if you wish to discuss this further. Sincerely yours? HOBBS, STRAUS, DEAN & WILDER By: Charles A. Hobbs v�, gs-s� � 1 CAROLL SAPBERO'CC: S 6COO OEAN IOC. IV" _..ARLES A -088S cOCI FOANCES L �ORN (OC. WVI MARS..A KOSTVRA (PA) .AMES S RICE (OR. •M) JCSEDw B RTAN IOC. TA1 TI-EODCPE A S—CLOS IOC. M01 _ERRV C STRAUS LOCI W WI'DER'OR OC CAI M,CI-AEL 0 +ROSS ,NM AZI KENNETa r TWOROCER (OC. ILI OF CCUNSEL ROBERT J MARTIN 5CVCRNMENTAL ArF^-DS COOROINATOR ,NOT ADMITTED TO ANT 0AR) H*88St STRAUS, DEAN b. WILDItA LAW OFFICES FEDERAL 6AH 19LIIL C•ING 1619 H STREET. ti IN =�;OE duu WASHINGTON. D C 20006 (202) 783 5100 Analysis of the Constitutional Issues in Cruz v. Ferre PCRtLAND OFFICE 4&3 !1 E F.41RD A.1. NLt 5—tC 425 PLIAtLAND vRCVvrT 9'G.i1 ISO JI e41e ej'S 3 NEW MEXICJ AFFILIATE Rot. 'AN AMBERG mobs AMARANT L ROGEI.S ?47 EAST GAL.CE ..CN-L N 1) d.iA 1447 SANtA rE. NLW MCAICJ d7SC, (9051 96t$ 9979 ANO Sd! 73-9 FLORIDA AFFILIATE TWOROGER SAUCA t FERREL, 2651 P40PTH FEDERAL —G( WAY FORT LAUDEROALE. FLORrDA 33339 13051 565 8990 I. Cruz v. Ferre - Case History Miami City Ordinance No. 9538, Section 1, prohibits any person from using a cable television system to knowingly distribute indecent material. Section 2 "g" defines indecent material as: representation or description of a human sexual or excretory organ or function which the average person, applying contemporary community standards, would find to be patently offensive." The Ordinance goes on to give the City Manager enforcement powers. He may receive complaints or initiate them himself. He presides over the hearing, admits evidence, and issues sanctions if necessary. See generally, Ordinance Section 3. The Plaintiffs, Cruz, and later HBO, challenged the Ordinance as facially unconstitutional and a violation of Due Process. District Court Judge floevaler agreed and granted the Plaintiffs' Motion for Summary Judgment. 571 F.Supp. 125 (S.D, Fla. 1983). ►1 S!;- 9G L] The District Court's first Conclusion of law, 571 F.Supp. at 130-31, was that the Miami Ordinance went beyond the permissible line of Miller v. California, 413 U.S. 15 (1973), and was thus overbroad and facially invalid unless saved by the Pacifica case. F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). The Court's second conclusion was that the Pacifica case did not save the Ordinance, because the Ordinance prohibited speech in a "wholesale" fashion without taking account of the variables upon which the Supreme Court upheld the Pacifica regulation. The Court compared the broadcast and cable media noting that cable viewers elect to subscribe, and have program guides and lockboxes with which to protect children. Because cable possesses these elements and broadcast does not, Pacifica does not control in the cable context. In addition to the First Amendment holding, the Court ruled, 571 F.Supp. at 133, that the enforcement procedures in Section 3 violated Due Process. Relying mainly on In Re: Murchison, 349 U.S. 133 (1955) and Withrow v. Larkin, 421 U.S. 35 (1975), the Court held that "the risk of unfairness is intolerably high" in the Ordinance Section 3; therefore, the fundamental notion of fairness in Due Process was found lacking. In the Eleventh Circuit Court of Appeals, the City of Miami again presented its arguments that Ordinance No. 9538 was constitutionally valid under the First Amendment and the Due Process clause. In essence, the Eleventh Circuit affirmed the ruling and reasoning of the District Court, adding that a recent H — Rg—e(o 19 E :. J �3 a dd8e, 9algee v, Ynunys drug, 103 S.Ct. 2875, limLtS Pacifica to its facts. Ste upiniun :attached, cru., v. Ferre at 2599-600. The Court of Appeals dent on to find that Nven if Pacifica .iid apply to cable t1:LeVl51L)n, the- MiamL Ordinance ,foes Leyond the Pacifica limiting variables of time of day, context of program, and the composition of the audience. Id. at 2601. The Court of Appeals also affirmed the lower court's Due Process ruling, relying primarily on Withrow and Vance v. Universal Amusement Co., 445 U.S. 308, 315 and n, 12 (1980). In the opinion of the Court, the trial judge properly concluded that the enforcement methods of Section 3 presented an intolerably high risk of unfairness in an area of the law which requires narrowly drawn procedures. See opinion attached at 2601-02. II. First Amendment Law Relevant To Cable Indecency A. Pacifica The justification for regulating non -obscene indecent speech on cable television would most readily come from F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In that case, the Supreme Court in a five to four opinion upheld the F.C.C.'s right to sanction broadcast indecency based on several findings, including: (1) the Pervasiveness of the broadcast medium; (2) indecency confronting audiences in the privacy of the home where their rights outweigh an uninvited speaker's rights; �O 1 the audience tunes in and out and indecent material may "assault" them without warning; (4) unique accessibility to children and the state's important interest in supporting parental authority, and the independent interest of the government in child welfare; (5) the indecent material was characterized by its being patently offensive; and (6) the F.C.C. action was based on a nuisance rationale. Pacifica at 748-50. •a The majority opinion was written by Justice Stevens, with the concurrence of the Chief Justice and Justice Rehnquist. Justice Powell (joined by Justice Blackmun) concurred with most of the Stevens opinion, but not with the part that endorsed the concept of an heirarchy of speech (i.e., 'K that foul language is entitled to less First Amendment � protection relative to other kinds of P speech). Justice Powell noted the channeling effect of the F.C.C. regulation to protect children and the importance of the speech being uttered in the y home instead of being uttered in a public forum. Id. at 757-59. The Powell concurrence also noted that people wishing 'q to receive such material were not totally shut off from it as s, they could obtain recordings or attend live shows. Id. at 756-57. Given all of these limiting variables, the F.C.C. could constitutionally sanction the broadcasting of non -obscene a. _ offensive words. B. The Utah Cases The State of Utah was the first to attempt to apply a Pacifica type regulation to cable television programming. In I E 880 v. Wilkinson,, 531 P.Supp. 986 (D. Utah 1982), the District Court struck down the Utah law which had made it a misdemeanor to knowingly distribute indecent material over cable. The operative elements of indecency, including nudity and various sexual acts, were similar to the Miami law. The law did not specifically mention children, or define a permissible time for indecent distribution. The terms "time, place, manner or context" and "patently offensive" were also absent from the law. Judge Jenkins held that the Miller case draws a line beyond which the state could not go to regulate speech content. In other words, states are powerless to regulate non -obscene indecent speech on cable television. The court held that Utah's law, in going beyond the Miller line, was overbroad and thus unconstitutional. While Pacifica was cited to the court by the Attorney General, Judge Jenkins' opinion diLl not mention it. In the neat case, Communit7 Television v. Roy City, 555 F.Supp. 1164 (D. Utah 1962), Roy City (Utah) had passed a cable ordinance which would allow a cable license to br cancelled for the knowing distribution of indecent material over cable. Indecency was defined much as it was in the state law involved in the HBO case, with the additional qualifying element of "patently offensive." The Roy City ordinance did not contain any limiting variables such as time, place, manner, and context. Roy City relied principally on Pacifica. This time Judge Jenkins analyzed Pacifica and produced a "laundry list" of cable and broadcast differences and M - TS-961 I 4 similarities. After comparing the two, Jenkins ruled that the differences between the two media required that Pacifica not apply to cable. Basically, Judge Jenkins felt cable was less pervasive and therefore, less intrusive, due to the extra levels of choice inherent in cable. Again Judge Jenkins fell.back on applying Miller as the standard; he felt that nothing short of Miller would pass muster, and thus concluded the Roy City ordinance was unconstitutionally overbroad. The third Utah cable indecency case involved a more carefully drawn statute, which attempted to provide a narrowly tailored law which the courts would find consistent with Pacifica. The statute was challenged in Community Television of Utah v. Wilkinson, No. C-83-0551A and C-83-0581A (D. Utah, April 10, 1985) (the CTU case). While the new Utah Cable Decency Act defined indecency in a fashion similar to the old law's definition, the Act added the words "time, place, manner and context," and also the Miller notion of community standards. Utah Code Ann. § 76-10-1702 (Supp. 1983) (copy attached). In addition, an official statement of legislative intent expressly noted the law's intent to protect children and privacy in the home. The Attorney General later issued an enforcement opinion stating that he would not seek to enforce the law's nuisance -style civil sanctions against any movies shown between 12 midnight and 7 a.m., because the Act mentioned "time" and the legislative history showed the legislature did not intend a 24-hour ban. c I It On Aptil 10, 19651 mistti(2t Court Judge Aldon Anderson rifled that the new Utah law was unconstitutionally overbroad on its face.1/ Judge Andersen's First Amendment analysis began, as in HBO, Roy City, and Judge Hoeveler's Cruz decision, with the Miller standard. Finding that the Utah law goes beyond Miller, he looked to see if Pacifica justified the deviation. He concluded that the differing characteristics between the two media meant that Pacifica was not applicable to cable indecency. Slip op. at 34 (we have earlier sent a copy to you). The differences include cable's unlimited channel capacity and cable's lesser degree of intrusion. Id. at 36-38. According to Judge Anderson, the Utah law attempts to supersede parental authority and does not channel indecency away from child viewers. Id. at 40-44.2/ Based on his conclusions (1) that cable indecency and broadcast indecency are constitutionally distinguishable; (2) that Pacifica should not l/ In addition, he apparently ruled the Cable Decency Act was pre-empted by the new Cable Communications Policy Act, 47 U.S.C. § 521, et seq, unless it was Constitutional, in which case it would not be pre-empted. we do not think this point is relevant to this analysis. 2/ Judge Anderson refused to give the Attorney General's Opinion any legal significance. Slip op. at 42, 47. fie ignored the Defendant's citing of United States Supreme Court precedent stating that when a Eedcral court evaluates a state law for facial overbreadth, that court must apply any limiting construction offered by a state court or state enforcement agency. See Hoffman Estates v. F i ipside-, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5 (1982). � - FE- s G I 19 E M I M be extended to cable; and (1) that in any event the Utah law goes beyond Pacifica's guidelines, the Utah District Court ruled that the Cable Decency Act was overbroad under the First Amendment. He added that he thought the Utah law too vague as well. III. Evaluation Of The Eleventh Circuit Ruling The Eleventh Circuit held in your case that Pacifica did not apply to the regulation of cable for primarily two reasons. First, broadcast is an intruder in the home and cable is not. Second, the cable medium is less accessible to children than broadcast because cable is more manageable by parents; that cable does not intrude because parents affirmatively choose to subscribe; that after affirmatively exercising this management decision, parents can still sufficiently protect children from indecent content by reviewing program guides and buying lockboxes. Opinion at 2599-600. A. Comparison of Cable and Broadcast In our opinion these differences between cable and broadcast do not necessarily prevent the application of the Pacifica principles to cable regulation. While the Supreme Court has noted that each medium of expression presents special First Amendment problems (Pacifica at 748-49), the Pacifica Court's concern centered on the harmful effect to children and unsuspecting viewers of indecency transmitted over a pervasive medium. In reviewing an indecency law, a court should compare cable and broadcast in this context. M- gs- S-(O ( t Cable is rapidly becoming as pervasive as broadcast, given industry figures on the number of homes with a television hooked up to cable, and will soon overtake the broadcast medium. Cable is as capable as broadcast of having a profound impact on the viewer in his own living room -- whether the viewer is a child or an adult. In our opinion the Supreme Court would probably not agree with the Eleventh Circuit, that subscribing to cable television 3 amounts to a waiver of a person's right to privacy in the / home.— In the Pacifica case, the Court could easily have said that if the viewer dislikes the indecent programs, he can easily s; turn to another channel. But it did not; it said the viewer had fj a right not to be confronted at all with such programs, at least + not in the afternoon, which was the context of that case. By �F ri t` implication, this covers regular family viewing hours. The Eleventh Circuit indicated that if the cable viewer does not like the occasional indecent movie that comes into his ?. home, he can always cancel his cable subscription. That is true, but if the indecent material comes in on the HBO or Showtime type channel, the subscriber has to give up all the good movies too. If the indecent material comes in on the basic channel (and in New York indecent material reportedly is being { 3 i t 3/ With respect to the "indecent" assault in the home, see _ Pacifica at 748-49 and n. 27, where the Court analogizes to telephones. 4 good reception except by cable, as is true of many parts of Utah). B. The State's Interest Sven if a cable subscription is deemed to be a waiver, the State still has substantial interests in supporting parents' claim to authority in the home and in "the well-being of its youth." Ginsberg v. New York, 390 U.S. 629 (1968), Prince v. Massachusetts, 321 U.S. 158, 168 (1944). The argument that any parent who is concerned about indecent movies can buy a lockbox, and keep the offending channels locked, is not persuasive. The broadcasters in Pacifica made the argument that lockboxes were available, but the Supreme Court ignored the point. In the CTU case in Utah, it was brought out in evidence that although lockboxes are offered to all subscribers in Utah, less than one percent (and perhaps not even any) bought them. it is entirely possible that family subscribers do not think of lockboxes as appropriate for a family television set. These state interests mentioned in Ginsberg are as strong in the cable context as they are in the broadcast context, regardless of cable television's protective devices. The parents' ability to prevent their adolescent child from buying "girlie magazines" did not undercut the state interests in Ginsberg. In addition, the parents' decision to buy a car with a radio in it, or to buy a television or radio at all, did not undercut the Government's interests in Pacifica. The same M-8s S(O� ■ 6: -11- reasoning should apply in the regulation of cable decency. The Court of Appeals seemed to assume that children are - so well protected from cable indecency that the State's interest is weak. In our opinion this assumption is incorrect. A recent empirical study by T.V. Audience Assessment, Inc. reveals that most people with cable choose their programs by scanning channels. For those people, lockboxes and program guides are ineffective protection from the visual assault of indecent programs. Cable viewers tune in and out just as the radio listeners referred to in Pacifica at 748-49. In our opinion there are solid arguments that indecency on cable television can be regulated within the guidelines established by Pacifica for the broadcast media. Whether five or more Justices of the Supreme Court would so hold is of course difficult to say, but in our opinion there is a good, fighting chance (we would say at least 50-50) that they would as a general principle. However, whether the details of a particular regulation would also pass muster is a separate question, which we will now address. C. Assuming Pacifica Applies, Does A Flat Ban Satisfy The Pacifica Principles? It is apparent that your Ordinance is a flat ban, rather than a time, Mace and manner r,-guIarion as d1scussed by the Pacif Ica Court, 436 U.S. at 748-50. This could he a problem. However, the Pacifica Court did not,- that differences between radio and television are relevant to an analysis of the appropriate regulation for indecency Id. To the extent that M. Fs-.961 10 { .12M your Ordinance goes beyond Pacifica, the argument could be made that this extension is necessary given the greater "assault" potential of television as opposed to radio. This would be obvious where the viewer is a child who is too young to read. Id. at 748-49. Perhaps more important is the indication in Pacifica that access to non -obscene erotic speech cannot validly be totally cut off. Id. at 756 (Powell, J., concurring; and of course Powell's position is critical because without it there is no majority of the Court). As in Pacifica, the access to indecent cable speech is not totally cut off by your Ordinance, given that willing viewers can always rent or buy these movies and view them at home on a video cassette recorder. However, in our opinion the Ordinance would have a considerably higher chance of being approved if it spelled out a time window (e.g. from 11 pm to 7 am) in which the indecency ban would not apply.4/ In our opinion, the Court of Appeals failed to place Pacifica in the proper context with other cases involving the permissible regulation of non -obscene sexual speech. Cases such as Ginsberg, Young v. American Mini Theatres, 427 U.S. 50 ( 1976) , and New York v. Ferber, 458 U.S. 747 (1982) illustrate 4/ Utah' s Act does not have such a window, but the Utah Attorney General added one in his role as chief law enforcement officer, in view of the Act's express reference to "time" as being a relevant factor, and the fact that the legislative history clearly showed that the legislators did not intend a 24-hour ban. V V _ 4 that the state may take restrictive measures against the Commercialization of non -obscene sexual speech in order to protect its substantial interests. As the Supreme Court has noted: there is s 'right of a Nation and of the States to maintain a decent society...' The sum of experience...atforus an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human persona Iir_y can be debased and distorted by crass commercial exploitation of sex." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59-60, 63 (1973), Given this context, an argument can certainly be made that your Ordinance is within Pacifica's principles. D. The Bolger Case The Eleventh Circuit believed that the Supreme Court's ruling in Bolger weakened the precedential value of Pacifica. Opinion at 2600-01. In our opinion the much stronger argument is that Bolger did not weaken Pacifica. The Postmaster in Bolger was attempting to purge mailboxes of material which contained information on the important social issues of family planning and venereal disease. Bolger at 2882, 2884. The Supreme Court mentioned Pacifica only in a passing response to the Postmaster's child protection defense. Given the lesser impact on young children of the printed word as opposed to the impact of indecency over radio or television, Pacifica was not relevant to the decision in Bolger. Pacifica was concerned with the impact of indecent sexual speech transmitted in a manner which had an impact on children too young to read. Pacifica at gc-SGI A complete analysis of Due process law and fundamental rights is outside the scope of this opinion. we feel it is sufficient to conclude, after examining precedential authority, that the Eleventh Circuit's ruling on Due Process in your case is not apt to be overruled. The Supreme Court has noted that where fundamental rights are at issue, a state regulation may be upheld if it is narrowly drawn and furthers, in a permissible manner, compelling state interests. United States v. O'Brien, 391 U.S. 367, 377 (1968); Carey v. Brown, 447 U.S. 455, 465 (1980). While we think Miami's interests are compelling, the manner of enforcement of your ordinance seems clearly impermissible in light of the several precedents cited by the Court. Opinion at 2601-02. The "intolerably high ris% of unfairness" test of Withrow v. Larkin, 421 U.S. 35, 58 (1975) is a factual determination which a higher court is not likely to wish to review, let alone overturn. F. Free Speech Point From a Free Speech perspective, there is a serious argument that your ordinance does go beyond the limited 5/ The trial court in Bolger had overruled the Postmaster, but did require that the birth control material be sent in plain envelopes, so that the risk of children accidentally being exposed to the mailings was minimized. h-8ss�� WN, ; 748-49.5/ -14- E. Due Process Point A complete analysis of Due Process law and fundamental rights is outside the scope of this opinion. We feel it is sufficient to conclude, after examining precedential authority, that the Eleventh Circuit's ruling on Due Process in your case is not apt to be overruled. The Supreme Court has noted that where fundamental rights are at issue, a state regulation may be upheld if it is narrowly drawn and furthers, in a permissible manner, compelling state interests. United States v. O'Brien, 391 U.S. 367, 377 (1968); Carey v. Brown, 447 U.S. 455, 465 (1980). While we think Miami's interests are compelling, the manner of enforcement of your ordinance seems clearly impermissible in light of the several precedents cited by the Court. Opinion at 2601-02. The "intolerably high risk of unfairness" test of Withrow v. Larkin, 421 U.S. 35, 58 (1975) is a factual determination which a higher court is not likely to wish to review, let alone overturn. F. Free Speech Point From a Free Speech perspective, there is a serious argument that your ordinance does go beyond the limited 5/ The trial court in Bolger had overruled the Postmaster, but did require that the birth control material be sent in plain envelopes, so that the risk of children accidentally being exposed to the mailings was minimized. M - 8S-s� f it regulation allowed in Pacifica. Even the Pacifica plurality noted that the indecency there was "not entirely outside the protection of the First Amendment." Pacifica at 746. This plurality opinion is consistent with Justice Stevens' plurality opinion in Young v. American ;Mini Theatres, 427 U.S. 50 (1976) stating that: we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value... ." Id, at 70. Inasmuch as the Pacifica majority stressed the time variable (Pacifica at 750), we feel the fact that the absence of a time window for indecent cablecasts is a serious weakness in your case. A time window would not only enable your ordinance to be more compatible with Pacifica but it would enable your regulation to be considered more like Ginsberg and less like Butler v. 141chi.gan, 352 U.S. 380 (1957) . In Bijr_ler, the Court held that the government cannot reduce the adult population to seeing only what is fit for children. 1,1, at 383. In as much as parents do have some controls available to tham with the lockbox, etc., a time window appears more in aid of their authority over cable content in the home (Ginsberg, at 640) and less like an attempt to supersede that authority. IV. Likelihood of Review by the .Supreme Court Indecency on cable, and regulation of cable content in general, are hot public issues. This naturally favors your /I- FC-E(01 -16- chances for review. The heaviest weight against your chances is the procedural Due Process distraction which will allow the Court to avoid a ruling on the First Amendment.6� Other unfavorable factors are (a) there is at this time no conflict in the Circuits regarding cable content regulation; (b) the Ordinance does not expressly claim to protect children, and aid parental authority; and (c) the Ordinance is a total ban which is inconsistent with the rulings most favorable to indecency regulation (Pacifica and Young v. American Mini Theatres). Given these conclusions, in our opinion you do not have a good chance to obtain the votes of four Justices for review. And if review was granted, in our opinion the Court would go off on the Due Process issue, and not reach the First Amendment issue. But if it did, the chances are only fair that they would rule in your way. V. Recommendations First, we would strongly advise that the Due Process infirmities in the Ordinance be cured. One approach that in our opinion would probably be upheld, would be for the City Manager to prosecute complaints against the cable franchisee before a special administrative board, with the board's rulings being 6/ The Supreme Court is probably reluctant to decide such a controversial First Amendment issue except as a last resort; it has twice faced the issue of First Amendment rights of cable operators and has twice refused to reach that issue. See F.C.C. v. Midwest Video, 440 U.S. 689 (1979); Capital Cities Cable v. Crisp, 52 U.S.L.W. 4803 (June 18, 1984). V -17- appealable to the municipal �-ou rt . 1 titi 1-�- the c-irrt- nt ordinance's sanction of license revoccittan seems appropriate under Pacifica, your office has informed us that the Court of Appeals expressed some concern over whether such a sanction violated the First Amendment under Gayety Theatres, Inc. v. City of Miami, 719 F.2d 1550 (llth Cir. 1983). In our opinion a good argument can be made that the City has a much broader interest in the regulation of a cable operator than in the regulation of theatre owners, given the physical disruption of the community caused by the initial cabling installations, and given the use of City land, rights -of -way, and utility poles. See Community Communications Co. v. City of Boulder, 660 F.2d 1370 (loth Cir. 1981). It is noted that the new federal Cable Policy Act, 47 U.S.C. §§ 531, 532(h), expressly allows the City to use the franchising process to prohibit indecent cable transmissions over commercially and publicly leased channels (so-called access channels). See also, 47 U.S.C. §§ 546, 558. While it does not expressly allow this mechanism for channels owned and used by the cablecasters, it impliedly allows it via Section 558, which allows State and local regulation of obscenity "and other similar laws," which the legislative history makes plain includes indecency (provided it is constitutional). Whether or not lLc ense revr,cation is permissible under the Constitution depends, in the final analysis, on the exact nature and extent of the cable operators' rights, something F'r ; . i which has not been fully developed yet. The Eighth Circuit ruled in Midwest Video_Corp. v. E.C.C., 571 F.2d 1025 (8th Cir. 1978) that cable operators have certain Free Speech rights, but, as noted supra, at 16 n. 6, the Supreme Court has not yet settled the issue. Given the restriction on civil suits against cable operators in the Cable Policy Act, one safer approach may be for the City to take complaints against the cable operator and use these in considering whether to renew the franchise agreement with that operator every five years. This is not only apparently in line with the Cable Policy Act, but was the actual context of the Pacifica case, where the only threat to the cablecaster was that the F.C.C. might use the indecent incident as a basis for denying renewal of the license some day in the future. we realize of course, that any procedural provisions the City adopts are likely to be challenged by the other side, so that it may not be possible to reduce the case to the pure Free Speech issue. Second, we would advise that the City Council consider amending the Ordinance to allow a time window (say 10 or 11 p.m. to 6 or 7 a.m.), during which arguably indecent programs would not be challenged (but this, of course, would not be a license to show obscene material). This would be more in line with some of the Pacifica language than is the current ordinance, and would in our opinion greatly improve the chances of court approval. A clause stating that this regulation is necessary in ' i — ?,.7-57(ol • A1%A order to further the objectives of aiding parental authority in the home and protecting child welfare would also conform to Ginsberg and would support a claim of substantial interest by the City. A final suggestion would be to add a more specific definition of indecency to the Ordinance. The Utah model might be helpful in this regard. A finding that certain programs are "patently offensive" in the context of a given cahlecast seems to be appropriate under Pacifica. 7/ If the Ordinance were amended to eliminate the Due Process question as much as possible, and to allow a time window, in our opinion there is a good, fighting chance (better than 50-50) that the United States Supreme Court will uphold the Ordinance as against a Free Speech challenge.. If only the Due Process question is eliminated, in our opinion your chances would be only fair (less than 50-50). Sincerely yours, HOBBS, STRAUS, DEAN & WILDER 1 By: Charles A. Hobbs 7/ If you decide to re -draft the Ordinance, you may consider taping samples of what you consider indecent and let these samples be part of the record upon which the City Council re -drafts an indecency law. These tapes would obviously be in anticipation of the next lawsuit against the City. We feel the consideration of taped materials by a reviewing court is a strong factor in your favor in a court's consideration of the constitutionality of a cable indecency regulation. M- 85-sGi CRUZ v. FF.RRE Ruben CRUZ, Plaintiff -Appellee, Home Box Office, intervenor -Appellee, V. Maurice A. FERRE, etc., )coward Gary, etc., the City of Miami, Fl., etc., Defend ant9-Appellants. Americable of Greater 'Miami. Ltd., et al.. Intervenors. No. 5355;8. United States Court of Appeals, Eleventh Circuit. Mar --h 22, 1985. :fiction was brought challenging consti- tutionalii r of city ordinance re, ilacng re- sulting distribucon through cable television of "indecentmaterial-­ !Motions for summa- ry judgment were granted to �he plaintiffs by the United S races Dis " :ct Cour for the Southern Dis- ct of F?or:da. Wrn. M. Hoe- ve!er..J., : - r .Sinn. 125. and the :Cr and other defendants appealed. The Cour. of :kppeals. Stafford. Dis=c. Judge. 3, �' g by designation. held :ham i 1i the oral: arse was consdtut:orya1y _ov!E�_-broad :where it was noS iiited soieiv m obsce.=: and where prohibicon was %vrioiesale and with- out regara .o nme of day or oLner ';ar—a- bies- inciudinj: a:za �-of frpe "'oc k. ux ar "paren.ral sew" �o procect children or )E.:er imrnaccllre ne ,ve from unsuitable prc5rmmini, and �~ e ordi- nance. permic, m; cicy -nar.ager =o :nidate compiamm against licensee. assess : aiidicy of complaint preside over hearing on com- Honorable 'Nidiam H. Stafford. :r.. C.iief U.S. District Judge for the Northern Distract of Flon. 2594 plaint, admit evidence at the hearing, make a determination and issue sanctions violat- ed fundamental notion of fairness implicit in constitutional guarantee of due process. Affirmed. 1. Constitutional Law 0+90.10) City ordinance regulating distribution through cable television of "indecent mate- rial" was constitutionally overbroad where it was not limited solely to obscenity and where prohibition was wholesale and with- out regard to time of day or other varia- bles, including availability to subscribers of free "lockbox" or "parental key" to protect children or other immature viewers from unsuitable programming. U.S.C.A. Const. Amend. 1. 2. ConstitutionaI Law <�:=2137.2(1) Telecommunications :,-=449 City ordinance regulacing distribution chrough cable teievision or "indecent mate- r al" and permicring citcr manager to initi- ate comoiaires agains-, 'icensee. assess va- !idlt_r oI (_,ompiaint. OresiQe 0v2I :-esrr:n(r on comniaint, admic e,ndence at _,,e warm r, make a decerminadon and issue sancwons vioiated fundamentai nocon of fairness im- plicit in cons-dtucional o grantee of due process. Const. l rends. _3. 1=. appeal from the United States District Court for the Southern District of Forda. Before H_1TCH'== and CLrLRK. Circuit Judges, and ST_-FM ORD ', District Judge. da, sitting by designation. Synopsis. Syllabi and Key Number Classification COPYRIGHT ED 1,985 by WEST PUBLISHING CO. The ivnopsm ivilabi and Kew Number Classifi- muon-:onsutute au parr cif the )pinion of the court t UM %-. 1:1,1111E STAFFORD, District Judge: This cause involves a challenge to the constitutionality of a riiami ordinance reg- ulating the distribution of obscene and in- decent material through cable television. The district court found the provisions of the ordinance regulating the distribution of "indecent material" constitutionally over- broad. Additionally, the district judge held that the ordinance "violate[s] the notion of fairness implicit in one's right to due pro- cess of law." C, izz v. Ferre. 571 F.Supp. 125, 126 (S.D.Fla.1983). We affirm on both first amendment and due process grounds. FACTS A-N D PROCEDUR_A.i.. HISTORY Cir: of Miami Ordinance No. 0.223. adopted on OCmber 19. 1981, sets fort:l the overall system for regjiating cable tele- ^sion in the Cirv. of Miami. On November 19. 198_. the city enacted Ordinance No. 9332, g-and Yliami Cabievision ("Cablev- ision"), 3 Joint venture of A ne.icabie of G' reater Miami. Inc., and Miami T-2lecom- ...unicetions. Inc., a nonexciusive, revocabie iicense :o opera La a cable :eiev:sion s_ysczm in 1liami. On January.' i::. 19'3, the _itv enacc2'.i a third �:aole ordinance. C-Ir.iinance :tiu This oniinance, which is the subject .)f this lawsuit, is intended to revrulaLC "indecent" and "obscene" maLer:al on _aoid calevision. The relevant portions of this ordinance pro- vide: Section I. No person shall by means of a ::ible telt;'isiun syicem knowingly dis- tribute by wire or _able any obscene or indecent material. Section '. The following -..vords have the following meanings: (f) The test of whether or not material is "obscene" is: (i) whether the average Berson, applying contemporary communi- ty standards, tvoulcl find that the worl., Laken as a whole, appeals to the prurient interest; (ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) whether the xork, taken as a whole, lacks serious literary, artistic, political or scientific val- ue. (g) "Indecent material" means material which is a representation or description of a human sexual or excretory organ or function which the average person, ap- plying contemporary community stan- dards. %vould find to be patent!y offen- sifie. AddiLionally. section 3 of the ordinance provides procedures for comptainw alleging violations o the ordinance to be brought. The cit_:- manager is to receive all co,m- plain:_z of alleged violations. Ordinance No. sec. 3(a). Furthermore. the city: manager is empowered to initiate such .=aims `iimiel. lc1. a !1 comoiai: ts, wheta- �" r!-_t�!ved or initiated. by the c:t': mana;- ar_ be revict-v.-:d by :^.im :o setermine whether tncre !s ur;)uabie :auSe to believe :=fiats :ias bee-^. eommictdo. Id. sec. 3l i; if the .fit_• manager ;ieterminas that probabic -ausc e:acs. he must trive 'xr:tteri riouce of the alleged violation to the licenser. The notice must soacUl the natare of r.he alleged violation and the ,iaca, time, and piace of the hearing to be conducted by =Ae :!ty manager. Id. sec. 31ci. :fit the hcarmz, :vhich !s to be "infor- mal," the !icensae may be represa.^.ted by counsel anti may present evidence and kzoss-examine wiLnessas; the proceedings are to be cranscr ibed by a court reporter. let. sec. 3m). Thr city manager presides Y E CRUZ v. FERRE over the hearing and governs the admissi- bility of evidence. Id, sec. 3(e). The bur- den of proof (a preponderance of the evi- dence) is on the city, which is represented by the city attorney or his designee. Id. sec. 3(f). Within ten days after the conclu- sion of the hearing, the city manager is to make his written findings and decision, in- cluding the nature and extent of any sanc- tions imposed and the reasons therefore. Id. sec. 3(h). The only sanctions provided in the ordinance are suspension of the li- cense for a period of time not to exceed nine days, or termination of the license. Id. sec. 36). This action for declaratory and iniunctive relief was filed in February 1983 against appellants, the City of Miami, its mayor, and its cif:• manager . Plain ti:f-appellee Ruben Cruz is a Cabievision subscriDer. The complaint sought a judg-rent declaring the ordinance void on its face and an in- junction restraining the enforcement of the ordinance. Appellee Home flog; Office. Inc. ("HBO") was permitted to intervene as a piaintiff. Cab levision was granted leave to intervene as a defendant and later moved to withdraw. but its motion was denied. Cabie,rision did not take a position in the lower court and has nor participated in this appeal. Because the facts of this case were not in substantial dispute. all parties filed mo- tions for summar. ;udgment. Plaintiffs also riled motions for preliminary: and per- manent injunctions. After holding t:vo hearings on the issues presented, the dis- trict judge granted plaintiffs' motions on Augnst 2, 1983. The citx was permanently enjoined from Qnforcing sections 1 and 2(g) of Ordinance No. 9533, which regulate "in- 1. Appellants do not chailenge the district court's findings regarding the existence of a "case or U 2596 decent material" on cable television. The court also enjoined the city from imple- menting the enforcement procedures pro- vided for in section 3 of the ordinance. Appellants challenge the district court's resolution of the first amendment and due process issues.' An amicus curiae brief urging reversal has been filed by the State of Utah. Amicus curiae briefs urging af- firmance have been filed by the National Cable Television Association, Inc., and the Motion Picture Association of America, Inc. FIRST AMENDMENT (1] The united States Supreme Court has long recognized tha: the first amend- ment's prohibition against any "law ... abridging the freedom of speech" applies to the states and their subdivisions through the fourteenth amendment. Gitlow v. New Fork, 268 L.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). The Court has recog-nized oniv limited categories of speech :hat fall outside of the first amendment's orotec- don. The Court. has declined to extend protection to figinring words. Cha:,iinsky v. New Hampshire. 315 T.S. 568, 62 66. 86 L.Ed. 1031 + 1942), ce;a;ration.New York Times Co. a. Sullivan. 3176 C.S. 1-54, ?4 S.Ct. 7, 10), 11 1 ..Ed._1d ti86 i1964); speech inciting imminent lawless action, Branden- burg v. Ohio. 395 U.S. 444. 99 S.Ct. 1Q27, 23 L.Ed.2d 430 (1969); and obscenity, Roth v. United States, 354 U.S. 416, 77 S.CL 1304. 1 L.Ed.2d 1498 (1957). In Miller v. California, 413 U.S. 15, 93 S.Ct. ''_60 37 L.Ed?d 419 (1973), the Court reaffirmed that obscene material is unprotected by the first amendment and set forth the current controversy" and standing. 9 0 2597 CRUZ %-. PEARE pertnissible limits of regulation. However, the Miller court "acknowledge[d] ... the inherent dangers of undertaking to regu- late any form of expression. State stat- utes designed to regulate ubscene, materi- als must be carefully litnited." Id. at 23- 24, 93 S.Ct. at 361-1-2615. Appellees did not challenge the Miami ordinance's definition of ''obscene" materi- al or the city's constitutional authurity to regulate obscenity on cable television. (The ordinance's definition of obscenity is in fact closely derived from the test set forth in MilLer.) Rather, appellees chal- lenged the provisions of the ordinance which attempt to regulate "indecent" mate- riais. The ordinance's definition of inde- cenc materials goes beyond the Miller defl- nit:on of obscenity in two significa nt rt�- spects. First, the ordinance does not re- quire that the challenged materials, "ta%en as a whoie. appeal to the prurient interest in see:." .biller, 4I3 U.S. at 24, 93 S-Ct. at 2615. Second. the ordinance does not m- qu::--_ whether :he mater:a!_-, "tak-en as a w.^.o:_. do not, have Ss?.:oL's 'iterar_: an st:c, '011t:ca1, or sc:e.^a:i:C ?:alle. ' IC'. :1e're- fore. ._ ins:erias falling within :he ordi- nance_ ce::^.itor. o_ i:.dece^.c are to be reTu;atec. :he cir:.s authority to do so :rust be fount somewhere .)cher than in the Supreme Courts obscenic' cases. A pceilants' or-Iman- ark .:meat or. appeal is :hat au:horr� for t:�1e cir.'S re; station is found in the Supreme Court decision FCC v. Paccif:ca Foundation, 4,338 i..S. "6, 98 S.Ct. 3026, 67 L.Ed.2d 1073 (1979). In Pac- ifica, a radio station broadcast a nvelve- minute monoioglie by comedian George Carlin entitled "Filthy Words." The mono- logue was replete with language described its "Vulgar," "offensive," and "shocking." Id. at 747, 98 S.Ct. at 3039. The broadcast was in mid -afternoon, and the complaining listener heard the inonolog-ue while travel- ing in his automobile with his young son. The narrow issue presented to the court was whether the Federal Comnnunications Commission (FCC) had the authority to reg- ulate and proscribe this particular broad- cast. Id. at 732, 98 S.Ct. at 3036. Five members of the Court concluded that broadcasting of indecency could be regulat- ed by the FCC under certain circumstances. The Court noted that "of all forms of com- it is broadcasting that has re- ceives the most limited First :amendment tunr,ae•ifin " Id. at 748, 9S S.Ct. at 3040. The Coun found :wo factors regarding broadc'astin- to be of particular relevance to the case with which it wqs presented. First. the Court found relevance in :he fact that "r.he broadcast media have established a uniquely per-rasive presence in rile lives oI all Axae-^.cans and :fiat "f oJarandy ot- -_,ns;ve. indeCen: muter. :al areS2.^.Ced e the alr"Na'reS con: oars :he citizen. nor anly n gub'ir .but also to :.he at '- e .iome_ where :lie mdi:•idual's ^gzc to be alone plainiv ourveiz s rye First — enamant rights or := inL af3.r." Id� Second. the Court found that "broadcasting s unique!v a=is. A :a f ra -!V@0 those :too young to read." Id. at 749, 98 S.Ct. at 3040. The Court was concerned ,vith "[t]he ease with which c:^.iidren may obtain access to broadcast material," and also recognized "the government's interest in the ''Nell -being of its youth' and in sup- :. Because the broadcast audienr- k ,;onst -ndy radio when he hears indecent language is like tuning in and out, prior warnings cannot saving that the rcrnedy for an assault is to run corapfCIrt"- =atc-i Cie lisietier SQr viewer from away after the First blow. unexpected program content. To say that one Pacifica, 438 U.S, at 748-49, 98 S.C1. at 3039—:0. may avoid further offense by turning gaff the M-8ss�� 0 I CRUZ %,. FER RE patting 'parents' claim to authority in their own household' ...." Id. at 749-50, 98 S.Ct. at 3040-41 (quoting Ginsberg v. New York, 390 U.S. 629, 639-40, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968)). The Pacifica Court, however, made a point of "emphasiz[ing) the narrowness of our holding." 438 U.S. at 750, 98 S.Ct. at 3041. The Court suggested that factors such as the time of day of the broadcast. +.hie -onion ad the Drum, and the compo- sition of the audience miZht affect whether a particular h had = aI,W be regulated. Id-3 Moreover. the C-auri wy-4W that "dif- ferences between radio, +pia 'lsina, a-fA per- haps claw(4-circuil; Lzaa i9giet^.s, me-y also be relevant." Id. The district cows-., aster "a careful con- sIde_*ation of Paoli ica." found FaCrica to 3. With reference to the Court's opinion. Justice Powell. joined by Justice 3lackmun. sated: "On its face. it does not prevent respondent Pacifica Foundation from broadcostinr, the monologue during i`ate evening hours when fewer chiicrtn are likc;v to be in thc wr 4om broad- casting d1scassic ,Syr :�a _ter_ r:; -a use of Ianguage at anv time z�u adz%ic z4ay." ?cCficc, 438 US. at 760, 38 S.C;. at 30-:6 ;Powe!l. co n ciim n g). 4. Judge Hocveler rave a '--ref des=pucn of the eabie teievision .medium and site nature of sub- seripdor, services suc;i as 30: Unlike broaccast teic--,ision, which sends over -the -air sic—ais, cabic :eievision operates by transmitting prcgr arcs :o subsc-icers through coaxial cables or wires. Thesc cables or--.vires arc individuaily attached :o ordinar-� television sets in subs=b-C-s' Domes. Through the use of a converter, cable tele- vision can ir.c-case the _i,anne! czipac:ty of a television set dramatically. Cablevision. for example, has the capacity to offer up to 104 channels. Cablevision is presently the sole Miami ca- ble television liccnsce. it provides basic cable services. which include improved reception of local broadcast television and the reception of more remote broadcast signals. It also has 2598 be "inapplicable to the facts herein." Crttt v. Ferre, 571 F.Supp. at 131. After de- scribing the cable television medium,' the district court contrasted the cable medium with broadcast television. A Cablevision subscriber must make the affirmative deci- sion to 6ftng Uablevlsion into his home. By using monthly program guides, the Ca- bievision subscriber may avoid the unpleas- ant. surprises Mai sometimes occur in broadcast programming. Additionally, the disfrict court noted, the ability to prWAct childr?-u is prD_y ed throu7.h the u.--e of a. Tree "lockbox" or "garental i ey" available from Cablevision. Id. at 132. In reaching his conclusions, the district judge relied in great part upon two cases from L;tah, Community Tele,,,-ision, Inc. v. Roy City, 555 F .Supp. 116� (D.L'tah 1982), offered and continues to offer subscribers up to six private television services for asepal-ate fee. Subscribers may opt for these services on a monthiv basis and must make supple- mental payments cats: mont:, `or the services to be mainta:nec. One private sc:-vice o.;erec' by Ca- bievision is omc Box Gf:ice. inc. ,"HBO"). Approximately sevc r:-fi:e perc_nt of the 2,000 or so hcuseoics . ___.vins cable television sucsc-:bc :c �3C. .30's :3roaram- .ning inc!uces ;catur c :iris. _-per .r.g _•:cats. and speciai programs. ant :s provide,4 74 hours a _av sc":cn -1ays a .-vccs. 3%, aeree- ment. Cabicvtsion ars.:,ta BO's entire viewing Gal.v. HBO shoves :i!ms rated ' ' 'PC.' or 'R' by the Motion ?ic:u-e i:sociauon of ,kmenca. as we!l as unraicd .`iims xhich wouid :lave re- ceived suc' ratings .. mtec. It is H='s poli- cy not to exabit :;lens an "'t" rating or its equivaicni. Monthly r:BO prog-am :ist ..he times and dates of all program offerings, and :hey describe and give the ratings. if any, of the programs. Subsc-:bee-i,ousehoids may con- trol family access to .he cabic system by using " lockboxes" and "parental keys." These are available from Cablcvision free of charge. Cruz v. Ferre, 571 F.Supp, at 128. - 2599 (,'ttuz v. MIME and Home Bost Office, 17tc. v. lVilktnsori, 531 F.Supp. 987 (D.Utah 1982). Roy City and Wilkinson are the only other federal cases to have adjudicated the applicability of Pacifica to cable television. The district court in Roy City summarized the "key concepts" in Pacifica as "the broadcasting of patently offensive material, its presence on public airwaves at a time when it could be available to children, audience surprise, and the power of the F.C.C. to control airwaves in the 'public interest.' " 555 F.Supp. at 1166. After listing the differ- ences . between cable and broadcast tele- vision, id. at 1167,1 the Roy City court examined these differences in greater de- tail and concluded, based upon these differ- ences, that Pacifica is inapplicable to cable television. The court gave particular em- phasis to Paci fca 's "pervasiveness" com- oonent and found that cable television, un- like broadcast television, is not pervasive. Id. at 1169. Although we recogtlize the complicated and uncemain area of constitutional incer- pretation which we are zncering and the importance of the interests asserted bV the cirY, we are persuaded that Pa, .fit a cannot De exEended to cover :ht: particular :acts of this case. �z� :ti�;�_. It must be remem- ber.d, L-t1�htsa t1 tiA ire-oa�ivas�n�t'3 ..ra- $ive pxAaaser.ge," 4v.� U.S. 3t r lam, 98 J.l.t. at 3040, and the fact that hroaiica ting "is uniuueiy accessible to children, even those wo young to read." Id. at 749, J8 S.CL at 3040. The Court's concern with the perva- siveness of the broadcast media can bast be S. This list was reproduced in the district court's opinion. Cruz v. Fore, 571 F.Supp. at 133. 6. Appellants seen to want to emcrid Justice Ste- ven . z "pig in the parlor" analogy. See Brief of appellants at 16 ("it ?takes no ..iitference wheth- er the pig enters the parlor through the dour of broadcast, cable, or amplified speech: govern- ment is entitled to keep the pig out of the seen in its description of broadcasted mate- rial as an "intruder" into the privacy of the home. Cablevision, however, does not "in- trude" into Lie. true. The Cablevision-sub- scriber must affirmat,tvely Plect to have cable seTvfc'e come into his li=e. Addi- ttonaiTy, the subscriber must make the ad- ditional affirmative decision whether to purchase any "e:;tra programming servic- ps, such as Fib. - he subscrter must mare a monthly decision whether to contin- ue to subscribe to cable, and if dissatisfied with the cable service, he may cancel his subscription. The Supreme Court's refer- ence to "a nuisance rationale," id. at 750, 98 S.Ct. at 3041, is not applicable to the Cablevision system, where there is no pos- sibiiity that a non-cabie subscriber will be confronted with materials ca.:ried only on cable. One of the keys to the ve-^r exist- ence of caote television is the fact that cable programming is available only to those who have the cable attached co their television sets." Probably the more important justirica- son racog-mzad in Pac•,!ica for the FCC's audr or.L- to re; slate the broadcas=ng of indecent matertai= Was the acce!isib6it.., of brnaocastintr to "`"he with which ohildren may ,obtain access to broad - Oast rnatertal-usz:rTlesj snec!al treat- menc of indecent broadcasting." Id. a 30, 98 3.Ct. at :3041. Tilis inceresti. how- r_ver, is siLrni icanLIV weaker In tLe �A. xt or cable ;elevi iue ^'-.i�ausa pteen 1L man- atgeablliN of cable television gre:,Ltly ex - parlor"). It seems to us, however, that if an individual voluntarily apens his Joor and allows a pig into his parlor, he is in less of a position to squeal. 7. Justices Powell and Blackinun seem to have placed particular emphasis upun this justifica. tion. See Pacrlica, 438 U.S. at 757-59, 98 S.Ct. at 1044-46 (Powell, J., concurring). rJ t CRUZ v. FERRE seeds . the, ability to manage the broadcast media. -Agath, parents must decide Nvheth- erliPallow Cablevision into the home. Par- ents decide whether to select supplementa- ry programming services such as HBO. These services publish programming guides which identify programs containing 11vulgarit3.," "nudity," and "violence." Ad- ditionally, parents may obtain a "lockbox" or "parental key" device enabling parents to prevent children from gaining access to "objectionable" channels of programming. Cablevision provides these without charge to subscribers. Pacifica represents a careful balancing of the first amendment rights of broadcast- ers and willing adult listeners 5 against the FCC's interests in protecting children and unwilling adults. The Court/ held that. un- der the particular facts of Pacinca, the balance weighed in fa -,or of the FCC- Be- cause we dete-_;a-i-nu -tl.> uzde.- the fa s of the I nataat caae Lhe =z=e c r c cLt Ll, Cates' of Miami are ,u st. nriaUy lesa sung than thole of the Fin Pas nra: we believe that we must hold Pas�so-to• bP irtapptica- bie to this case.' 8. Two members of the Paci,'ica majority gave more explicit rAcoenition to the rights of willing adult (imeners: It is argued that the Commission's holding in this case is impermissibie because it pre- vents willing adults from listening to Carlin's monologue over the radio in the -ariv after- noon hours. It is said that this n-iline will have the effect of "reduc-ingj the adult popu- lation ... to [hear.rigj oniv what is Fit for children." Butler v. Michigan. 35: US 380, 383. 1 L ed ?d 412, 77 S Ct _'4 [-=51 (I057). This argument is not without orcz. . But it is not sufficiently strong to :eave the Commis- sion powerless to zict in c:rcumstar.ces such as those in this case. Pacifica, 438 U.S. at 760, ?8 S.C:. at 3046 (Pow- ell, J.. concurring). 9. Appellants and the State of Utah apparently argue that the limited number of stations on 2600 Our conclusion regarding the applicabili- ty of Pacifica to the facts now before us is buttressed by the Supreme Court's own treatment of Pacifica. Recent decisions of the Court have largely limited Pacifica to its facts. In Bolger v. Youngs Drug Prod. ucts Corp., 463 -U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Court pointRd out that the male in Paci zca had "empha- sizeL4 the of our -holding" and tbP fazc6 I .4 asjing is %ziquely" perri,,si,ze aaff "uniquely" accesajble to chil- dren. Id. 103 S.Ct. at 2884. Bolger in- volved a chailenge to a federal statute pro- hibiting unsolicited mailing of contraceptive advertisements. The Court rejected the government's argument that the statute shielded recipients of mail from materials the: are likely to find offensive. stating: "The First :amendment 'does not permit the government to prohibit speech as intru- sive unless the "captive" audience cannot avoid objectionable speech.' Id. at 2883 (quoting Consolidated Edison Co. u. Pub- lic Sertrice Commission. 447 1 .S. -530. 642, 100 S.Ct. 2326, 2336, 65 L.Ed._'d 319 (1980)). The government also anempteri to justif-r cable television somehow gives the cir: an inter- est in re_iiating indecency, on :note television. This argument. however. misconstnses the ra- tionale in Pac^;ica and in other Supreme Court cases such as ,Red Lion Sr,7adcasrtng Co. v. FCC, 395 U.S. 367, 306. 39 S.C,. 1714, 1809. 23 L.Ed.Zd 3,71 (1060). 4s Justice Brennan noted in Pacifica: The opinions of my. Brothers ?owe!! and Ste. vens rightly refrain From revving on the no- tion of .1spc=r-,:m scarcity" to support their result. :1s Chicf ludgc 9aze!on notcd be!ow, "although scarc:ty has jusriiied :ncreasing the diversity of speakers and spr_ch, it has never been he!d :o :usuf-. z=riscrship." Pacifica, 438 U.S. at 770 n. 4, 98 S.C.. at 3051 n. 4 (Brennan, J.. dissenting) (quoting Pacifica Foundation v. FCC, 556 F.Zd 9, 29 (D.C.Cir. 1977)). . - I 0 U It 2401 CRUZ %-. PERRE the statute as an aid to parents' efforts to control the manner in which their children become informed about sensitive and im- portant subjects such as birth control. The Court, while recognizing that this interest was "undoubtedly substantial," found that the "marginal degree of protection achieved by purging all mailboxes of unso- licited material that is entirely suitahic for adults ... is more extensive than the Con- stitution permits, for the government may not 'reduce the adult populatier to reading only what is fit for children.' " Bolger, 103 S.Ct. at 2984 (quoting Butler v. Michigan, 352 'U.S. 380. 383. 77 S.Ct. 524, 526. 1 L.Ed.2d 412 (1957)). The Court dis- tinguished the facts in Pacij cc. finding the receipt of mail to be "far less int. ,live and uncontroIlable." Boiae?-, WSJ S-Ct. a: 2S`:4. Even if we were to find the -anocae of PaC:14iCG apEhcabt2—,o this case, we would still be compelled 'co s-TKp h-e ordinance as faciallc overbroad. A s the district %, ,- notcc, c:e -ordnance "prohibits tar too - broadly the ansinwssion of tnaece trnr mate- .1ais t-`trough cable teievision. - i :- nance s pronIMMn :s '.Vr., sQsaie� wtt:`iout ale of or other : ar.abies tr.dispensabie to she decision In ?ac.;-ca." C..c= : e�--e. F .Sup_ D. at :2" he ordinance totally :ails to acf•^.,.,:1nL far the time of dav, the context of =egro�-�:rt in Which _- e matenW anna� the comaysi- tion Q. the viewing audience. in :gnoring these variabies, the ordinance oes far be- vond the realm of permiss:ote re_ iiac:on envtsioaad by t::a However noble may have been the ::ity's intentions, we are _onstralned to recognize the limitations imposed by the Constitution 10. We nute that brtaucast stations which are also carried on Cablcviston are ,till subject to the FCC's permisstblc PacTlica regulattun. The and the opinions of the Supreme Court. The city's attempt through the challenged ordinance to regulate indecency on its cable television systetn exceeds these limita- ttons.10 DUE PROCESS (21 The district cOurt also held that the procedures for the enforcement of the ordi- nance, found in section 3, violate "the fun- damental notion of fairness implicit in due Process." Cruz v. Ferre, 571 F.Supp. at The court found that "concentrating the functions of complainant, jury, judge and 'executioner' in one person" created a "risk: of ar bits:•, or capricious Sovernmen- tal action [which] under these circumstanc- es is intoier-ibiv high." Il. The court recoo':ized %iat the combination of investi- gaL:ve and adjudic3t: e .unemons does not of itself amount to a due process violation. However, reiving upon language in W'i.lh- ^ow V. Larkin, 421 L-.S. 35. 58, 95 S.Ct. 1456, 11,70. 43 L.EC.2d 7122 (1975), to the effect that a court ma deter -nine that the facts before -he cour present an intoler- abiv high rsm of unfairness, the district cour . found such _sk to ex s: m the _Miami ordinance, describing the deter mir-a- trons to be made under the ordinance as iryoit ing "an area of .:•total judgment that might well try the neutra'k-y and imoartiaii- ty of Solomon." C,-az v. Fe: -re, 571 F.Supp. at 133. We find Ourselves in agreement with the ,district judge. The ordinance involves sen- sitive judgments in areas of potentially ;igh real impact Anon first amendment rts. ,ne Supreme Court has often recognized di:,trtct court ime:d that Cablevision's basic ser. vice wrisists 4 local and remute broadcast sig. nals. Cruz v. Ferre, 571 F.Supp. at 1_18. .0 u the statute as an aid to parents' efforts to control the manner in which their children become informed abuut sensitive and im- portant subjects such as birth Control. The Court, while recognizing that this interest was "undoubtedly substantial," found that the "marginal degree of protection ... achieved by purging all mailboxes of unso- licited material that is entirely suitable for adults ... is more extensive than the Con- stitution permits, for the gover-lment may not 'reduce the adult population to reading only what is fit for children.' " Bolger, 103 S.Ct. at 2$34 (quoting Butler v. Michigan, 352 L.S. 380, 353. 77 S.Ct. 524, 526. 1 L.Ed.2d 412 (1957)). The Court dis- tinguished the facts in ?acii-ica, finding the receipt of mail to be "far less int~- asive and uncontrollabie." Boioe•r, 103 S.Ct. at 2S.S4. Even if we were to find :he :a::oraie of PaC.-^c-- ap ncabl2--,.o this case, we :Would still be compe7l-ed 'to S'^• a :he ordinance_ as `aC:ally Overbroad. As the disZr:C. Jbdge _ 1 note', c:e -ordinance "prohibits far too -^Y broadly the transmission of indecent mate- -:als t.'lroug`1 cable teie`•':sion, lei r-- nance s pronibifon is wncilesaie.- without ' .lie -pie of d. v or other vaInabies ir.dispensabie to -he _�ec:sion in ?aci_nca." Cruz Fe7-rc, L -upD. at .1... "'lie 1 ordinance tOcaily faiis w ac � Li :.5e valr_Olathe time of day-, the context of the nr� in which .5e mat r - anntz� the comg_si- tion !ai. _he viewing audience. In ignoring these variables, the ordinance goes. far be- yond the realm of permissible reilat:on envisiooEd by tiw Court. However noble may have been the cicy's intentions, we are :onstrained to recognize the limitations imposed 1)y the Constitution 10. We nute that broadcast itatiuns which are also carried on Cablevisiun are 51111 subject to the FCC's permissible Panlica regulattun. The and the opinions of the Supreme Court. The c►ty's attempt through the challenged ordinance to regulate indecency on its cable television system exceeds these limita- tions." DUE PROCESS l21 The district court also field that the procedures for the enforcement of the ordi- nance, found in section 3, vi(;late "the fun- damentai notion of fairness implicit in due process." Cruz v. Fer-re, 571 F.Supp. at 133. The court found that "concentrating the functions of complainant, jury, judge and 'executioner' in one person" created a arbitrar•,- or capricious governmen- ::! action [which] under these circumstanc- es is mtoier•zbiv high." Id. The court re^_ot_-iized that the combination of investi- gat-ve and adlu'dlcat.ve functions does not of itself amount to a due process vioiation. However, revving upon ianguage in With- row V. Larkin. 4=1 U.S. vj. 5E. 951 S.Ct. 1456, 1470. 43 T . EC.2d i 1 7 (19"75), to the z:sect that a courtmav determine that the `acts. before :he court present an intoler- abiv high risk of unfairness, :he dis=—*ct court found such a r:sii to ex:s:, in the .Nl;ar:ii ordinance. desc- Bing :.he deter:nira- :ions to be made under Lr a ordinance as invon, ing an area of moral judg•-nent that mighc well cry the neutrality and imoardaii- tv of Solomon." C,^..c: v. erne, 571 F.Supo. at We find ourselves in agreement with the ,iistrict judge. The ordinance involves sen- sitive judgments in areas of powntially 'real impact upon first amendment rights. The Supreme t-'ourc has often recognized diou•ict court nuted that Cablevision's basic scr- vice consists of local and reroute broadcast sig- nals. Cruz v. Farre, 371 F.Supp. at 1=8. 0 CRUZ v. F ERRS that the regulation of a communicative ac- tivity must adhere to more narrowly drawn procedures than regulation of ordinary commercial activity. See, c.,v., Vance t% Universal Amusement Co., 445 U.S. 308, 315 &: n. 12, 100 S.Ct. 1156, 1161 & n. 12, 63 L.Ed.2d 413 (1980). "[T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line." Bczn- tam Books. Inc. v. Sullivan, 372 U.S. 58. 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). "The separation of legitimate from illegiti- mate speech calls for ... sensitive tools." Id. Because olf these considerations. the Cou- has required tools such as "a iudicial determination in an adv-ersary proceeding," I I. Because of our resolution of the issues in this appeal. we find it unnecessar- to address the equal protection, prior restraint, and federal 2602 Frccdnzan v. Maryland, 380 U.S. 51, 58, 85 , S.Ct. 734, 739, 13 L.Ed.2d 649 (1965), and a procedure for "prompt judicial review," Southeastern Promotio%t , Ltd. v. Con- rad, 420 U.S. 546, 562, 95 S.Ct. 1239, 1248S, 43 L.Ed.2d 448 (1975). While it would be inappropriate for us to determine at this time what procedures are necessary and appropriate under the ordinance, it is suffi- cient to note that the procedural guaran- tees presently 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 correct as a matter of law.tt Accordingiv, we FFIRy1. preemption issues raised by appeilees and ami- ci. Add, :Office, U.S. Qw4rtA—West Publishing Company, Saint Paul. inn. 0 I PART 17 CABLE TELEVISION PROGRAMMING DECENCY ACT +76.10-1701. This act shall be known and may be cited as the "Cable Teletision Programming Decency Act." This act shall apply to cable television systems and pay -for -view inb tele% ision programming. History: L. I9EJ, ch. 207, J 1. distribution of indecent material oi,er ceria:n tele%ision sistems, defining indecent mairno Title of Act_ and other terms, pro%iding ci%it penaltiesar.d An act relating to the rrcu!31!on of inde- enforcement procedures, and prc%iding an cent material, enacting the cable tele%is.en eP.ecti%e date. — LA%i 19iJ, ch. 20. programming decenci act, prohibiting the 76-10-1702. As used in this act- (1) "Knowing!y" means an awareness, whether actual or constructive, of the character of the material in%ol%ed. A person has constructive koowledge if a rea- sonable inspection, or obser•,at;on under the circumstances would have disclosed the nature of the material in%olved and if a failure td inspect or observe is either for the purpose of a%oiding the disc!osure or is negligent. (2) "Distribute" means to send, transmit, retransmit, telecast, disseminate, or eablecast b,, any means, inc!ud:ng by wire or satellite, or to.pro%16e mates;a; to send, trar.sm:t, retransmit, telecast, d:sserninate, or cablecast. (3) "Conternperary com.^nunicy standards" means those current standards in the vicinage w ^ere a nuisance alleged under this act has occurred or is occurr:ng (4) "Indecent -material" means a visual or verbal depiction, display, representa- tion, disseM:na::en, or ve-rtal descr:ption of: (a) A hur-ar sexual or excretory organ or function; or (b) A state of undress so as to expose the human male or female genitals, pubic area, or buttoci s. w•;tn ins .,an a fully opaque covering, or showing of the female breast iess .!;an, a fu:;j opaque cc%er:ng of any portion below the top of the nipple; or (c) An u!t;r ate sexual act, normal or perverted, actual or simulated, or (d) Mast rba:;on which the average person 3pp!;.:n; contemporary community standards for cable television or pa% -for-viewing television programming Mould Lind is presented in a patently offensive way for the nme, place, manner and context in v. hich the mate• rial is presented. History: !-. I9E c�. 207', f 2. 76-10-1703. A person shall be deemed :o have maintained a nuisance when. as a cone;nuir.; course of conduct, he knowing!%- distributes indecent material Within this state over any cable television system or pay -for -viewing television pro- gramming. History: L. 19S.. ch. 207. 13. 76.10-1,04. (1) Enforcement of this act shall be by civil process only and sub- ject only to the civil sanctions contained herein. (2) An action under this act may be brought by the Utah state attorney general or by any county or city attorney in any district court where the nuisance alleged r"1- SS U go 4 t fit! occurred or is occurring and shall be subject to the Utah Rules of Civil Proce- durt- (3) A person found to have maintained a nuisance shall be subject to a forfei- turt in an Amount not greater than s1,M, plus costs and reasonable attorney's fees (4) If a peTaon has pre-iously been found to have maintained a nuisance under this act, he stall be rubjrct to a forfeiture in an amount not greater than $10,000, plus costs and reasonable Fttornry's fees. History: L 11Q1, ch 170 f 4 76.10.1705. T1,,is set s);all apply solely to cable television systems or pay -for - Viewing tele«sion p egrammins and shall not apply to over -the -air broadcasting by a radio or telr�ision station located within the State of Utah and licensed by the Federal Communications Commission pursuant to Part 73, Subpart E, of the FCC Rules and Reg-ilations (47 CFR 73.601, et sue) Nothing herein, however, shall. preclude the application of this act to program material originally broadcast or otherwise distributed b% broadcast facilities located within or without the State of Utah and tberrafter distributed by a cable television system or pay -for -viewing television programming located u ithin the State of Utah. History- L M-0. ch. 'K 7, 1 5 76.10.1706. (1) It is an afmirnnative defense to an action under this act that the distribution of indecen! material was restricted to institutions or persons hav- ing scientific, educationai, goNernmental, or other similar justification for distribut- ing indecent material. (2) It is not a defense to an action under this act that the person was an employee, or oche; --Lise �A as required to violate any provision of this act incident to his employment. � (3) No party to an action under this act shall be required to introduce expert witness testimony as to whether the material is or is not indecent, or as to any element of the definition of indecency, including contemporary community stan- dards. History- L 19S31, ch. 207, 16. 76-10-1707. This act does not preclude the follow:ng- (1) The right of cities, counties, or other political subdivisions from further reg- ulating the dislr,bution of indecent material over any cable television system or pal' -for -viewing television grog-ammins; or (2) The application of other laws of this state regulating the distribution of indecent material o%er any cable eelevision system or pay -for -viewing television programming. History- L 19S.. ch. 2207. I 76-10-170& If an;: clause, sentence, parag-aph or part of this statute or its application to any person or circumstance shall for any reason be adjudged by am court of competent jurisdiction to be invalid, the judgment shall not affect, im,zir, or invalidatr the remainder of this statute or its application to other persons er circumstances but shall be confined in its operation to the clause, sentence, pzr:- graph, persons or circumstances, or part directly involved in the controversy is which the judgment shall have beer, rendered. History: L 1963, ch. 207. 4 9. Effective Date - Section 9 of Laws 19S.3, ch. 207 provided: "this act shall Lake effect upon approval." Effective April 20, 1963. 14 - 8s- s6 1 1