G.  Maine City Imposes Moratorium

on Public Access Channel

 

      A city council in Maine imposed a moratorium on its cable television public access channel after council members expressed disapproval of citizen views presented on the channel.  The council’s action raised First Amendment concerns but a federal district court, while expressing misgivings, let the moratorium stand.  

 

Background

      Dorothy LaFortune produced and hosted “The Maine Forum,” a weekly telecast on the public access channel of the Biddeford, Maine, cable television system.  The public access channel is under the control of the mayor and city council of Biddeford.  In July 2001, the “Forum” program featured an individual who spoke for one hour regarding various allegations involving numerous state and local government officials as well as private business entities. 

      After a complaint about the program from one of the businesses involved, the mayor ordered that the taped program not be replayed as was customary and that, in the future, Ms. LaFortune should submit tapes of the “Forum” in advance for preview by the mayor.  In August 2001, the Biddeford city council adopted an item upholding the action taken by the mayor.  Two months later, when Ms. LaFortune included excerpts from the July program in another “Forum” telecast, the city council passed an order banning “The Maine Forum” from the public access channel.

      The reason given for the actions taken by the mayor and city council was the failure of Ms. LaFortune to abide by the access user’s agreement she had signed, which required a producer to obtain written release from any person mentioned on the public access channel unless that person was a public official.  Ms. LaFortune claimed that this was an onerous condition that violated the Communications Act, 47 U.S.C. Sec. 544(f), and the First and Fourteenth amendments to the U.S. Constitution.  She brought suit in the U.S. District Court for the District of Maine in October 2001.

 

Magistrate Finds Prior Restraint

      In April 2002, a magistrate judge for the court issued a Recommended Decision on cross motions for summary judgment.  LaFortune v. City of Biddeford, No. 01-CV-250 (D. Me. April 30, 2002). The mayor’s order that Ms. LaFortune submit all programs to her for review before broadcast operated as an unconstitutional prior restraint on the plaintiff’s speech, the magistrate found.  Nevertheless, he concluded that Ms. LaFortune was not entitled to summary judgment on this count because she sought only injunctive relief and the evidence suggested that the prescreening policy had been discontinued.  But he did recommend that the plaintiff’s motion for summary judgment be granted with respect to the unconstitutionality of any requirement that she obtain written releases from all private individuals who may be mentioned during the program.

      Two weeks later, the Biddeford city council adopted an emergency ordinance amending its law on cable television to suspend operation of all channels of Biddeford’s Community Access Television Center pending revision of the terms governing use of the public access channel.  The council cited “inadequacies” in the then-existing terms and “the increased number of legal and community concerns” about the operation of the public access channel.  The council called its action a “moratorium” and stated its intention to promptly resume public access programming.

 

Restraining Order Sought

      Four days after the council’s action, Richard Rhames, another commentator on the Biddeford access channel, filed suit in the U.S. district court (No. 02-CV-112) and sought a temporary restraining order against the council’s moratorium.  Mr. Rhames asserted that the moratorium was not a good-faith attempt to reform the city’s TV-access procedures to meet legal concerns, but was the result of the dissatisfaction of city councilors with his and Ms. Lafortune’s telecast statements.

      On May 24, 2002, U.S. district court Judge D. Brock Hornby denied the request for a restraining order, concluding that there was not a likelihood of success at trial on the merits of the claim that Biddeford’s moratorium ordinance amounts to improper speaker or viewpoint censorship.  Rhames v. City of Biddeford, 204 F. Supp. 2d 45 (D. Me. 2002).  Judge Hornby noted that if his decision “were to be based upon the comments of certain councilors, Biddeford’s ordinance would be in serious jeopardy.”  One councilor, for example, said he wanted to make sure that citizens who tuned into the channel would not have to hear things that offended them.  

      Judge Hornby found, however, that on its face the ordinance indicated that the city council had reasonably wanted time to deal with legitimate questions of the city’s legal liability for statements made on the public channels.  After applying First Amendment tests, including public forum analysis, Judge Hornby concluded that the city council’s “temporary moratorium is narrowly tailored to Biddeford’s legitimate interest.”  He said that Biddeford had had no obligation to commence operation of the channel and could either modify the operation or end it if it did so for reasons other than speech or viewpoint censorship.

      Shortly thereafter, on June 20, 2002, Judge Hornby stayed the earlier LaFortune case to give the city of Biddeford time to “pursu[e] expeditiously a determination of … its public access channel policy.”  The parties to the case were ordered to report to the court on the status of the matter every 60 days.

      In August 2002, the city council agreed to resume operation of its cable channel to transmit meetings of the council, the school committee, and the planning and zoning boards, but not, as before, to present programming produced by members of the public.

      On Dec. 19, 2002, after the city’s latest report to the court without taking action on public access programming, Judge Hornby commented in an order that he had “a nagging concern whether Biddeford is dealing with this lawsuit in good faith.”  He said that “Biddeford now seemingly takes the position that no further change [on public access] is any longer in the offing.”  Nevertheless, he granted the city’s motion to dismiss the LaFortune case for mootness, given the nature of that plaintiff’s complaint about her treatment by the council.

      The Rhames case, which challenges the legality of the council’s moratorium on all public access programming, was still pending at the end of 2002. 

 

--J. Laurent Scharff