FARROH, SCHILDI-Ll\USE, VHLSO;:J & RAINS

Including A Professional Corporation

Harold R. Farrow
Orner L. Rains
Robert M. Bramson
Senator Office Building
1121 "L" Street, Suite 808
Sacramento, California 95814
(916) 447-2000
Attorneys for Appellant
IN THE UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
PREFERRED COMH.UNICATIONS, INC., )
a California corporation, )
)
Appellant, )
)
v. )
)
CITY OF LOS Al:rGELES, CALI FOfu"1 lA, )
a municipal corporationr and )
DEPARTMENT OF AND )
a municipal utility, )
)
Appellees. )
---------------------------------)
No. 84-5541
RESPONSE
TO BRIEF OF MlICI CURIAE
OF THE CITIES OF PALO ALTO,
PARK ATHERTON
I. IW;:'RODUCT ION
A. Assumed By Palo Alto Are
To Those Pled Below And Are Incorrect
B. Acceptance of Palo Alto's Legal Arguments
Hould Require A Radical Reordering Of
Consti tutional Rights, And \'lould Require
A Rewriting Of The First Amendment
II. Pl\LO ALTO ['4ISUNDERSTANDS AND :v1ISCHARACTERIZES
THE POSTURE OF THIS CASE
III. PALO ALTO'S TO DEVALUE
FIRST A..'1ENDt<1ENT RIGHTS, AND THUS TO AVOID
CONSTITUTIONAL OF ITS
EXCLUSION, MUST FAIL
A. The Consti tutio':1 Protects The
Of Dissemin3.tion As Hell As The
Dissenination Itself
B. The Re-Publication of Another's Vie'.Ns Is
Entitled To Full CO::1stituti,)!,lal P:ot'-=ctiol1
C. Palo Ai to I s Rei i ance UpO::1 It I..J.-=-=lSed
Access" Is :'1isplaced
IV. PALO ALTO I S CLAIMED INTEREST IN FIR3T
VALJES" IS .mOLLY ':7 U''1.)'JT lE7..1-::'
V. PALO ALTO .r>,.:D
MISAPPLIES THE TEST
A. The O'Brien Test Does Not App
To The F:1cts At Issue
B. The Requirements of the O'Brien
Test Are Not Het
1. It Is Los Angeles' Interest
Not Palo Alto's Guesses About
Them, ilhich f1ust be Llenti fiea
2. Palo Alto's Suggested "Interest"
Are Improper
3 "Cream Skimming"
i.
PAGES
1
1
5
7
10
11
13
13
23
26
26
30
30
31
32
r;:'AB LS ()
Continued
PAGES
4. Access Channels 34
5. Cornputer-to-Computer Data Transmission 35
6. Disruption of Rights-of-Way 37
VI. CONCLUSION 42
ii.
TABLE OF
CASE PAGE(S)
Adderley v. Florida, 385 U.S. 39 (1966)
Associated Film Distribution Corp. v
Thornburgh, 520 F.Supp. 971 (E.D. ?a. 1981)
Bantam Books, Inc. v. Sullivan
372 U.S. 58 (1963)
Bol er v. Youn 's Drug Products Corp.
u.S. , 77 L.Ed.2d 469 1983)
Buckley v. Valeo, 424 U.S. 1, (1976)
Capitol v. Mitchell
F.Supp.
Catalina Cablevi3ion Associates v. City of Tucson
745 F.2d 1266 (9th eire 1984)
Century Federal, Inc. v. Palo Alto
579 F.Supp. 1553 (N.D. Cal. 1984)
Cinevision Corp. v. City of Burbank
745 F.2d 560 (9th Cir. 1984)
Cit Council of Los Angeles v. Taxpavers For Vincent
U.S. , 52 U.S.L.W. 4594 May 15, 1384
Clark v. Community F.or Creative
U.S. , 52 U.S.L.W. 4986 (June 29, 1984)
Community Communications Co. v. City
+
of Boulder
630 F.2d 704 (10th Cir. 1980),
rev'd 455 U.S. 40 (1982)
Co. v. City of Soulder
485 F.Supp. 1035 (D.Colo.) rev'd 630 F.2d
704 (10th Cir. 1980) reinstated 455 U.S. 40 (1982)
Community Communications Co. v. Boulder
660 F.2d 1370 (lOt, eire 1981)
Cox C1.ble CommunicClti'):13, Inc. v. Si-:l;?ST1
569 F.2d 507 (D.Neb. 1983)
Elrod v. Burns, 427 U.S. 347 (1976)
38
12
15
19
24
17
5
1-5
16,37-40
29
28
4, 42
9
34
32, 37
7
l
CASE PAGE S
FCC v. League of Women Voters,
52 U.S.L.H. 5008 5020 (July 2,
U.S.
1984)
25
FCC v. Midwest Video
440 U.S. 689 (1979)
18
United Artists Inc. 14
Frost v.
271 U.S.
Railroad Commission
573 (1926)
of Calif0rnia 32, 37
Grayned v. City Qf
408 U.S. 104 (1972)
Rock fori 39
Grosjean
297 U.S.
v. American
293 (1936)
Press Co. 15, 20, 35
Home Box Office.
567 F.2d 9 (D.C.
cert. 434
Inc. v. F.C.C.
eir.),
U.S. 829 (1977)
14
Interstate Circuit v.
390 U.S. 676 (1968)
Da:las
1 -
.::J
Kash Enterprises, Inc.
19 Cal.3d 294 (1977)
v. City of Los Angeles 12
Metromedia, Inc. v.
453 U.S. 490 (L981)
San Diego 28, 31
Miami Herald PUb. Co. v. Hallandale
734 F.2d 666 (11th Cir. 1984)
12
Hiami Herald Publishing
18 U.S. 241 (1974)
Co. v. Tornillo, 15, 18, 24,
Midwest Video Corp. v. FCC, 571 F.2d
1978) aff'd on other grounds
440 U.S. 689-(1979)
1025 21,
34,
25,
37
32,
"'linneapolis
U.S.
St:"lr v. i1in"1esot,:'i
,75 B L.Ed.dd 295 (1983)
:)f Revenue 35
Moffett v.
228 (D. Conn.
11ian,
1973)
360 F.Supp. 20
v. Alabama Educational Television
688 F.2d 1033 (3t'1 eire 1982) --
15
MurJ0ck V. sylvania,

319 U.S. 105
ii.
Pl\GE (S )
Perry Education Assn. v. Perry Local Educators' Assn. 37 , 96
460 U.S. 37 (1983)
For Better SDvironnent 20
Sec. of '1:).(:;1,'1.11 v.T.H. 'IllS)' '.
I U.S. 52 U.S.L.ll. 4875 (June 26, 1984)
Southern New Jersey Newspapers v. State of New Jersey
54 2 F. S u pp. 1 7 3 (D. 1-1 J. 1982 )
Stromberg v. 283 U.S. 359 (1'331)
Carr. v. C3S
415 U. S . 394 (1 'J 74- )
T'21'3vi.3i:::):1 Trans:nission v. Pub. Uti1. c:':')'1l.
47 Cal.2d 82 (1956)
U.S. Postal Service v. Council of Greenbur h
Civic 453 U.S. 114 1981)
United St-".te:3 \l. 710 F.2d 141)
(9th Cir. 1933)
United States v. 'Hr1',,.,est Video Sorp.
406 U.S. 649 (1972)
United States v. O'Brien, 391 U.S. 367 (1968)
20
12-13
29
14
32
20
14
26-30
I:lc. 17
Yo un v. A.r:1e r i C3. '1 in i 'rhea 17
427 U.S. 50 \1976
Weaver v. Jordan, 64 Cal.2d 235 (1966) 12
Wollan v. City of Palm Springs 12
59 Cal.2d 276 (1963)
OTHER
Cable Communications Policy Act of 1984 10
Cal. Pub. Util. Code, Section 767.5 39
Tribe, American Constitutional 28
iii.
I. INTRODUCTION
The Cities of Palo Alto, Menlo Park, and the Town of
Atherton (hereinafter referred to collectively as "Palo Alto"),
have filed a brief amici curiae, urging this Court to affirm the
decision entered below. However, the arguments made by Palo Alto
are not only legally inaccurate, but also improperly assume facts
which are contrary to those pleaded below and which have in ct
been proven to be false in the context of the very case in which
Palo Alto is a defendant.
A. Facts Assumed Bv Palo Alto Are ContrarY
To Those Pled &'ld Are Incorrect"
Counsel for Preferred is uniquely familiar with the
arguments contained in Palo Alto's brief. Those arguments are
taken almost verbatim from Palo Al to' s of Points anil
Authorities in Support of Motion for Summary Jujgment" in Century
Federal, Inc. v. City of Palo Alto, et al., No. C-83-4231-EFL
1
(N.D. Cal.). Counsel for Preferred is also counsel for
plaintiff Century Federal, Inc. in that case. As might be
expected in a summary judgment motion, Palo Alto relied upon a
lengthy list of (purportedly) undisputed facts in requesting the
1 See, Century Federal v. City of Palo Alto, 579 F.Supp. 1553
(N.D. Cal. 1984). By order dated November 21, 1984, District
Judge Lynch on his own motion removed from calendar both the
Cities' Motion for Summary Judgment and the Plaintiff's
Cross-motion for Partial Summary Judgment.
-1
Century Federal District Judge to grant its motion. Palo Alto
now presents the same arguments to this Court, but asks it to
assume --in ruling upon an appeal of grant of a Rule 12(b)(6)
motion-- the truth of those facts. Yet those facts are directly
contrary to the facts pled in the complaint below, and have in
fact been demonstrated to be untrue by the plaintiff in Centur
Federal.
As did the complaint in the instant case, the complaint
in the Century Federal case alleged that no physical or economic
scarcity characterized the provision of cable television services
in the market at issue. Similarly, both complaints alleged that
there was no significant disruption from having multiple, as
opposed to one, cable television systems in public rights-of-way
in the same city. As did the defendants below, Palo Alto in
Century Federal attempted simply to disregard those allegations,
or to assume their falsity. However, unlike the court below, the
court in Century Federal correctly held that the plaintiff must
be afforded the opportunity to prove the truth of those
allegations. Century Federal, Inc. v. Palo Alto, 579 F.Supp. at
1562 et ~ Yet, in its Hotion for Summary Judgment (and,
hence, in its amici brief), Palo Alto again attempts to "assume"
facts which it believes support its position.
However, in the Century Federal litigation, the
plaintiff has now proven that its allegations were correct, and
that Palo Alto's "assumed facts" are false. See, "Statement of
Undisputed Facts" (Exhibit 1) excerpted from Century Federal's
cross-motion for partial summary judgment. Submitted to the
Century Federal District Court were the Declaration of John
-2
Biggins (the author of Pacific Telephone's cable televisi0n
construction manual) (Exhibit 2), the Declaration of Wayne Lagger
(the present "CATV Coordinator" for Pacific Bell) (Exhibit 3),
and the Declaration of Kenneth Thomas (Exhibit 4), president of a
major engineering/consulting firm (together with that firm's
eX'!1austive study), to prove that there is no physical licnitation
on the number of cable tel ev i s ion compani es \"hi ch ::lay be
accomodated in the Cities of Palo Alto, Menlo Park and Atherton.
These declarations also show that with modern cable television
system construction methods, there is no significant added
inconvenience or disruption from having two, as opposed to one,
cable television companies construct their systems at the same
time.
There is also submitted in the
litigation the Declaration of Dr. Leonard Tow (Exhibit 5),2 an
economist and former university and the president of
one of the largest cable television c0mpanies in the United
States. Dr. Tow has 20 years of experience in t'!1e cable
television industry. His declaration establishes that cable
television is not characterized by economic scarcity, i.e., that
cable television is not a natural monopoly in Palo This is
a fact we believe we could also prove to be true in Los Angeles.
2 The attachments to Dr. Tow's Declaration, amounting to
approximately 1000 pages, have not been supplied -- in an attempt
to keep the Court's file down to manageable size. Preferred
will, of course, immediately provide these documents if the Court
so desires.
-3
The Declaration of Dr. William Lee (Exhibit 6), a professor of
journalism, notes that, in any case, the large number of cities
with only one newspaper provides no occasion for franchising
newspapers, and that, accordingly, there is no need to
"franchise" cable television operators. Finally, Dr. Lee "llso
explains in detail the extraordinary injury to journalistic
freedom presently caused by the (often successfUl) attempts of
local governments to control numerous aspects of cable television
' , , 3
d lssemlnatlon.
Preferred believes that it is crucial for the Court to
be aware of this evidentiary background in the Century Federal
case when it assesses the arguments made by Palo Alto herein.
This is true because of the prevalence of cert"lin widespread
"myths" about cable television which, though having a certain
amount of intuitive appeal, turn out to be completely without
basis in fact. some of these nyths of which
may have been accurate when applied to the early days of
community antenna television, but which have no relevance to
modern day cable television), have appeared to form the basis for
3 This "total control", and its attendant chill, of
cablecasters by local government is not speculative or
hypothetical, as a case presently pending before this Court
demonstrates. See Pacific West Cable Co. v. City of Sacramento,
et al., No. 84-2373, Appellant's Opening Brief at 10. The
factual record before this Court in that case constitutes a livid
example of the extraordinary burdens on journalistic freedom
which are born of the franchise auction process. See also,
Community Communications Co. v. City of Boulder, 630 F.2d 704,
712, n.8, 713, 719-20 (10th Cir. 1980) (Markey, C.J.,
dissenting), panel majority rev'd, 455 U.S. 40 (1982).
-4
some past judicial decisions --particularly decisions in
non-constitutional contexts, where the courts Of '-en need not and
do not scrutize the particular factual assertions presented to
them. See, e.g., Catalina Cablevision Associates v. City of
Tucson, 745 F.2d 1266 (9th Cir. 1984). Preferred believes that
the record in Century Federal establishes an point:
Though the facts alleged in the complaint in this case may be
contrary to certain widely accepted beliefs, this by no means
indicates that those alleged facts cannot be proven -- rather, it
is the "myths" which will be proven to be without basis in fact.
As the Century Federal record indicates, the rule that all
well-pleaded allegations must be accepted as true, is a wise
one. The court below failed to follow this rule, and its
judgment must be reversed.
B. Acceptance of Palo Alto's Legal Arguments
Would Reauire A Radical Reordering Of
Constituti:::mal Rights, AJ1d "dould Require
A Rewriting Of The First
Palo Alto makes two separate arguments. First, it
claims that plaintiff has no First rights except when
engaging in one very narrm'J acti vi ty, and that Los Angeles has
not stopped Preferred from engaging in that activity. Second,
Palo Alto claims that Los exclusion of Preferred is
"justified" because of the resulting control which Los Angeles
has gained over its selected cable television operator. As is
shown below, both of these arguments are legally erroneous.
However, some preliminary observations are helpful.
-5
As it must, given the allegations of the complaint, Palo
Alto does not purport to base its arguments upon any "u:1ique"
characteristics of cable television which might Cl.rguably provide
some basis for distinguishing cases i:1volving other First
Amendment speakers. Rather, Palo Alto presents a theory of the
Constitution which it must (and appare:1tly does) contend applies
across the board to all First & ~ e n d ~ e n t speakers. If Palo Alto's
theories are correct as applied to Preferred, then they must also
be correct as applied to newspapers, movie theaters, and all
other First Amendment speakers. Conversely, if --as is in fact
the case-- innumerable decisions have already explicitly or
implicitly rejected those theories as applied to newspapers,
etc., then they must also be rejected in the context of this case.
One of Palo Alto's fundamental beliefs is apparently
that all it (or rather Los Angeles) need demonstrate to this
Court is that some "public good" has been gained by Preferred's
exclusion from access to willing listeners. Palo Alto apparently
believes that the means used to obtain the "governmental
interests" are completely irrelevant. Thus, Palo Alto recognizes
that its suggested "interests" could not constitutionally be
obtained through the use of proper police power regulation -
that is, neutral, narrowly tailored enactments applicable to all
on a non-discriminatory basis. Rather, Palo Alto boldly explains
that if Los Angeles does not exclude Preferred from the market,
and provide a different operator with a government-protected
monopoly, then it will lose the power to extract "concessions."
As Palo Alto puts it, without a franchise auction process, "a
city forfeits the leverage necessary to obtain such concessions
-6
from a ... cable operator. Put simply, an operator will have no
reason to a ee [to provide free benefits to t ~ e public] if the
municipality cannot exact those concessions as the price of
admission." (Amici Br. at 29). However, by acknowledging the
fact that the attainment of its "interests" is beyond proper
police power, Palo Alto ~ e r e l y underscores t ~ e fact that the
municipal actions involved are unconstitutional. A governmental
body is forbidden from using the power to grant or deny a benefit
or authorization in such a way as to atteQpt to obtain
"agreeQent II to inproper requ i rements . "The den i 3.1 0 f a publ i c
benefit may not be used by the governnent for the purpose of
creating an incentive enabling it to achieve what it may not
command directly." Elrod v. Burns, 427 U.S. 347, 361 (1976). In
a nutshell, Palo Alto urges as justification for Los Angeles'
unconstitutional exclusion of Preferred from its audience that
Los Angeles has been successful in achjeving "What it [could] not
command directly". Palo Alto's "justifications" are themselves
admissions about the unconstitutional and corruptive nature of a
process amounting to nothing more nor less than an auctioning off
to the highest bidder of the right to engage in free speech.
In its brief, Palo Alto seriously misunderstands what
issues it is necessary for this Court to resolve at the present
time. Palo Alto characterizes Preferred as seeking "the absolute
right to construct and operate" a cable television system, and
states that "[tJhe question is simply whether cable franchising
-7
as an institution is constitutionally sound." (Amici Br. at
3-4) Palo Alto claims that ?referred must lose this appeal so
long as Los Angeles and/or Palo Alto can describe any conceivable
"franchising process" which would be constitutional. These
statements are erroneous for several reasons.
First of all, this appeal involves a l2(b)(6)
dismissal. It is t ~ e cts alleged in the complaint, not some
imaginary cts suggested by Palo Alto or Los Angeles, which will
form the basis for this Court's decision. Contrary to Palo
Alto's assertion that Preferred has not "attacked the details of
Los Angeles' particular franchising process", the complaint
contains almost three pages of such "details" which Los Angeles
imposed as prior restraints even to participate in its auction
(at least with the chance of "winning"). (CT 1 at 8-11). At a
minimum, each of those ?rior restraints would have to be
justified (ba upon cts) before Los Angeles can prevail as a
matter of law. Palo Alto's attempt to defend some paradigm
"franchise process" must be rejected unless it is concluded that
there is no conceivable municipal action which could violate a
cable television operator's First Amendment rights.
More significantly, the complaint also alleges "that the
city will not permit plaintiff to operate a cable television
system within the South Central area under any circumstances or
on any terms and conditions." (CT 1 at 11-12). Thus, it is Los
~ ~ g e l e s ' exclusion of Preferred which must be defended in this
case. In the second half of its brief, Palo Alto suggests some
purported "governmental interest" in the availability of certain
cable services (such as access channels). However, Palo Alto
-8
fails to explain how those "interests" could support Los Angeles'
total exclusion of plaintiff.
Assuming ar endo the legitimacy of the interests
proposed by Palo Alto, the appropriate method of fulfilling those
interests would be to enact a legislative ordinance requiring the
relevant services, and then to invite in all persons willing to
operate subject to such requirements. Had Los Angeles taken
action, imposing narrow, carefully tailored requirements in a
non-discriminatory shion, Palo Alto's discussion might be of
more relevance. Perhaps, in that case, certain of those
requirements would be upheld -- perhaps not. The Court no
p
not
decide those questions because Los did not proceed in
that fashion. This Court has no way to know what requirements
Los Angel es l'Y'ould in fact impose were it to proceed properly, in
a normal legislative manner. Regardless of the opriety of the
asserted interests, the auctioning off of a First Amendment
right, and the tot3.1 and permanent exclusion of the "losers" and
"non-participarlts," is an improper method of seekirlg to achieve
those interests. As the District Judge in the Boulder case
recognized:
Assuming that Boul r does have the claimed
authority to regulate cable television within the
City in the manner which [it desires], the
approach taken is not an appropriate exercise and
articulation of a policy of regulation ... It
might well be a different case if Boulder had
enacted an ordinance articulating qualifying
criteria for cable companies to do business in
the City, with such other regulations as the City
government might believe to be ne essary and
proper in the exercise of police power ..
Community Communications Co. v. City of Boulder, 485 F.Supp.
-9
1035 (D.Colo.), rev'd 630 F.2d 704 (10th Cir. 1980), reinstated
455 U.S. 40 (1982).
Finally, this case does not turn, as Palo Alto
contends, upon "the right to operate a cable television system
without a franchi se" . Rather, the key question is: "Under
what circumstances and for what reasons may Los
withhold such a franchise?" Pref'2rred is quite willing to
obtai:"! a "franchise" (or "license", "permit", etc.) from Los
Angeles, so long as Los l-1....'1geles issues it in cOElpliance with
4
the requirements of the Constitution. For exanple, a ci
can constitutionally require a parade permit from would-be
demonstrators, but the First Anendr:1e!1t requires that such
permits be issued in a manner consonant with its dictates. The
same is true for cable television "per.nits."
III. PALO ALTO'S .!;TTE>lPT TO DEVALUE PREFERRED'S
FIRST RIGHTS, A!:'l"D THUS TO AV'JE)
CONSTITUTIONAL SCRUTIJY OF ITS
EXCLUSION, MUST FAIL
Palo Alto contends (1) that a prohibition upon the
erection of a cable television system does not raise rst
Amendment questions because the actual laying of wires does not
4 The recently enacted Cable Act defines the term
"franchise" as meaning any "authorization . whether such
authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise".
(Section 602(8. This definition undercuts Palo Alto's claim
of support from the Act's explicit authority to issue
"franchises".
-10
involve expression; (2) that the
rst Amendment protects only
material, that the publication and
transmission of expression created by anyone other than an
employee of Preferred is completely unprotecte5; and (3) that,
as a result of the previous two contentions, Preferred's only
"true" First Amendnent activity (i.e., transmission of
newly-created m::lo::erial) could be "adequately" disseminated
through use of the "leased access" channels to be provided by
Los Angeles' selected cable
These ::lore The first, because
it relies upon an unacce ably narrow view of the First
Amendment; the second, because it represents a etely
improper and unprecedented view of w"'nat is "expressive
activity"; and the third, because it depends upon the accuracy
of the first two. In addition, the third proposition is
erroneous for reaS0ns.
A. The Constitution Protects The Means
Of Qisse;nination .;'s h'ell As The
Disse;nination Itself
Palo Alto argues that the construction of a cable
television system "itself involves no communication protected
by the First Amendmert ... [The] activities [involved in
erection of a cable system] are no more protected by the First
Amendment than are construction of water, electrical, or gas
distribution systems, or for that m::lotter telegraph or telephone
systems." (Amici Br. at 7). This argument is erroneous.
-11
Palo Alto is incorrect when it states
that placement of the means of conmunication (i.e. cables and
wires) upon public rights-of-way is unprotected under the First
A:nendment. Rather, when a person seeks to take some action for
the purpose of subsequent expression, such action is protected
under the First Amendment. The Constitution protects the means
of dissemination as well as the dissemination itself.
Associated Film Distribution Corp. v. Thornburgh, 520 F.Supp.
971, 982 (E.D. Pa. 1981); "'leaver v. Jordan, 64 Ca1.2d 235
(1966) As the California Supreme Court stated in Wollam v.
City of Palm Springs, 59 Ca1.2d 276, 284 (1963):
The right of free speech necessarily
embodies the means used for its dissemination
because the right is worthless in the absence of
a meaningful method of its expression. To take
the [contrary] position ... would, if carried to
its logical conclusion, eliminate the right
entirely.
As Preferred has previously noted (Appellant's Opening Br. at
13-15), this point was recognized and specifically applied to
the erection of a cable television system in the Boulder
litigation.
This point is also clearly evidenced by the "newspaper
box" cases. See, e.g., Miami Herald Pub. Co. v. City of
Hallandale, 734 F.2d 666 (11th Cir. 1984); Southern New Jersey
Newspapers v. State of Jersey, 542 F.Supp. 173 (D.N.J.
1982); Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d
294 (1977). These cases clearly hold that the placement of
newspaper boxes in public forums is activity protected under
-12
the rst Amend::aent. As was stated in Southern New Jersey
Newspapers, supra:
In that [newspaper] boxes playa role in the
distribution of plaintiffs' this
court agrees with the position that such devices
are entitled to full constitutional protection.
S
542 F.Supp. at 183. Were Palo Alto's contention correct, a
city would be permitted to ban a newspaper's boxes from its
streets because "they are nerely metal and plastic structures
whose placement is unrelated to actual dissemination."
B. The Re-Publicatio!1 Of .;rlOther's Views Is
Entitled To Full Constitutional Protection
Palo Alto urges upon this Court the novel proposition
that a person who "merely" re-publishes (i.e. re-transmits) the
messages of another is not entitled to any rst .:;"-c1ewJ.ment
rights. However, scrutiny of this theory reveals its untenable
nature -- it represents on what Palo Alto wishes the law to
be, not what it is.
No case of which Preferred is aware has ever
identified any such differing First Amendment protection for
5 Of course, valid time, place and manner regulations are
permissible when a speaker seeks to ce its means of
dissemination upon public property. Plaintiff has always been
willing to comply with such reasonable regulation of the manner
in which it erects its system. (CT 1 at Par. 9).
-13
.. d . . 6
orlglnate --as opposed to other-- Rather,
the case law makes clear that republication is fully as
protected as original expression. Thus, for example, motion
6
Palo Alto supports its theory with a hodge-podge of
inapposite cases. None of those cases recognize the
constitutional distinction I",hich Pal!) Alto urges upon t"!1is
Court.
Two of the cases, Fortniqhtlv Corn. v. United Artists
Television Inc., 392 U.S. Teleprompter Corp. v.
CBS, 415 U.S. 394 (1974), are t3ken out of context: they are
copyright cases, which solely addressed the issue whether the
retransmission of broadcast programs fell within the legal
de f ini t i on of "per fornances" under the Copyr i ght Act. Ne i ther
mentions the First Amendment.
The citation to United States v. Midwest V 0 Corp., 406
U.S. 649
1
680 (1972), is to the dissenting opinion.
plurality and concurring opinions in the case draw no such
distinction. More importantly, none of the opinions addressed
First Amendment issues. In Home Box Office, Inc. v. F.C.C.,
567 F.2d 9, 45 n.80 (D.C. eire ), cert. denied 434 U.S, 829
(1977), the court does not the distinction claimed by Palo
Alto, but merely to show that any permissible statutory FCC
authority over "broadcast" signals could not be used to justify
control over non-broadcast programming. Moreover, the footnote
is to a paragrap'1 which ccmcl udes that "there is nothing ... to
suggest a constitutional distinction between cable television
and newspapers ...... Id., at 46.
Finally, Palo Alto's reliance upon the six FCC cases
decided between 1965 and 1969 is unjustified. Br. at
10). Each of those cases involved the FCC's authority to
control communications disseminated over the broadcast
spectrum. Those cases simply held that the FCC could regulate
the uses made of such communications by cable companies --and
by any other persons.
Not one of these cases even arguably stands for the
proposition that original and re-published messages receive
differing First Amendment protection. Most of them did not
even mention or consider any First Amendment issues.
However, Palo Alto's reliance on these cases simply
underscores its failure to recognize the constitutionally
significant changes which have occurred in the cable television
medium, and which make modern cable television operators
directly analogous to newspaper publishers. In the 1950's and
60's, community antenna television was generally limited to
re-transmission of broadcast signalS:- Today, that simply is
not the case. See, Appellant's Opening Brief at 5-7.
-14
picture theater owners, who if ever create or edit films
that they exhibit, possess full First Ajnendment rights.
Interstate Circuit v. Dallas, 390 U.S. 676 (1968). Similarly,
book publishers and local broadcast television stations, which
generally or exclusively "republish" or "distribute" content
created by others, enjoy First Amendment protection. Bantam
Books, Inc. v. Sullivan, 372 U.S. 58 (1963), v.
_E_d_u_c_a_t_i_o;;..;n'-'..-a_1C-T_eC-l..... e_v_l_s.:....;;.i..:;.o 688 F. 2 d lO 3 3 (5 t h ..... C i r.
1982)
Newspapers are also primarily composed of content not
originated by their employees. Such typical content would
include national wire service stories and photos; syndicated
news, opinion and/or entertainment columns; advertisements;
want ads, c strips; financial/stock market data; sports box
scores and averages; and theater and television schedules. Yet
these same major newspapers enjoy First Amendment protection.
See, e.g., r-1iami Herald Publishing Co. v. Tornillo, 418 U.S.
241 (1974), Grosjean v. American Press Co., 297 U.S. 293
(1936).7
7 Palo Alto might argue that newspapers lish "more"
self-created material than do cable telev sion operators.
However, acceptance of such a tenuous foundation for a
constitutional princi e would not only effect a radical
re-ordering of rights, but would also open a virtual wonderland
of issues: Hhich newspapers create more material than which
cable television operators? What if a particular cable
television operator creates more new material than a particular
newspaper publisher? How much newly-created material is
(Footnote continued on next page)
-15
This Court's recent decision in Cinevision Cor. v.
City of Burbank, 745 F.2d 560 (9th Cir. 1984) completely
repudiates Palo Alto's theory. The plaintiff in Cinevision was
a concert promoter who did nothing more then arrange for
performances by various musical groups.
City suggests that because Cinevision
does not seek to "express" its views, it has no
First Amendment right to promote concerts for
profi t. However, ... [a]s a promoter of
protected musical expression, Cinevision enjoys
First rights.
* * *
[A] concert promoter, like a book seller or
theater owner, is a type "clearinghouse" for
expression.
745 F.2d at 567-68 (emphasis alter ) . One who acts as a
"clearinghouse expression" ne not even be familiar with
the content of that expression ln order to be afforded full
First Amendment protection. ld. at 568. Even accepting at
face value Palo Alto's description the functions of a cable
television operator, such a would exactly fit a
book seller, who neither creates nor edits books, nor
necessarily provides books unavailable through a competing
Footnote Continued
"enough"? Who decides? Hould a newspaper publisher lose its
First Amendment protection if it origina no material? Might
a newspaper publisher be entitled to rst protection
on some days but not on others (e.g., on Sundays, when
syndicated features and columns, puzzles, comic strips,
advertisements and want ads amount to a higher percentage of
the newspaper's content)?
-16
8
outlet. The First protects the e ession

of ideas. True origination of an idea occurs completely within
the brain of a human being. It is the distribution of that
idea, whether by the "creator" or by anyone else, which is
entitled to protection.
8 Palo Alto suggests that the rst Amendment does not
protect "duplicative" programming, that is progr3.mming also
distributed by ot"ers. (A:l1ici Br. at 10). Hith all due
respect, this proposition is absurd. A book seller does not
lose his First AmendT11ent rights simply because a conpetitor
sells the sane A movie theater cannot be closed merely
because a thea ter nearby shows the sane movies. '1'\;/0 Los
Angeles newspapers may both carry the same wire story, a:1d both
have the cO:1stitutional right to do so. One's First AInendment
rights are not lost simply because one's neighbor or competitor
says or publishes the same thing.
Palo Alto's citations are etely off point (and,
indeed, border on the bizarre). Justice Powell's concurring
opinion in Young v. &l1erican Theaters, 427 U.S. 50, 78 n.2
(1976) discusses a zoning ordinance that regulates where adult
movi es could be not whe ther they could be shown. Ti18
regulation dii not prohibit 3.ny rticular exhibitor froT11
showing movies, or limit the number of total exhibitors within
the city. In fact, Justice Powell points out that rk
forces ,.;ill determine the number of adult theaters w
city, not the zoning ordinance. Id. at 79. In United States
v. Paramount Pictures, Inc., 334 U.S. 131, 166-67 (1948), the
Supreme Court an antitrust case dealing with
monopolistic cO:1duct by private movie ?roducers. The Court
considered the "suggestion" that the monopolistic conduct at
issue might amount to a First Amendment violation of the rights
of the audience at large. The Court simply noted that the
monopolistic conduct at issue did not deny access to any
willing viewer. Finally, in Capitol Broadcasting Co. v.
Mitchell, 333 F.Supp. 582, 584 (D.D.C. 1971), ':he District
Court upheld a ban upon the broadcast of cigarette advertising
because of the limited First Amendment protection granted to
commercial speech [at least in 1971J and "the unique
characteristics "of" the broadcast medium. The Court also
noted that bro3.dc3.sters were not precluded from 3.iring their
own point of view on any aspect of the cigarette smoking
question.
In sum, it would be an understatement to say that these
cases do not support Palo Alto's claim that the First Amendment
provides no protection to a willing speaker if another speaker
has beat it to the punch.
-17
In any event, Palo Alto's characterization of a modern
cable television operator as nothing more than a passive
re-transmitter of messages is simply incorrect as a
factual matter. As the Supreme Court recognized more than five
years ago:
Cable operators now share with broadcasters a
significant amount of editorial discretion regarding
what their programming will include. As the
Commission, itself, has observed, "both in their
signal carriage decision and in connection with
origination function, cable television systems are
afforded considerable control over the content of the
progranming they provide."
FCC v. Midwest Video Corp., 440 U.S. 689, 707 (1979) (emphasis
added). This exercise of editorial discretion is fully
protected by the First Miami Herald Publishing Co.,
supra, 418 U.S. at 258.
C. P-3.lo Alt:)'s Reli-3.nce Upon "Leased
.
Access" Is Misplaced
In an argument predicated upon this Court's acceptance
of its extraordinary "republication" theory, Palo Alto claims
that Preferred's unquestioned First Amendment -3.ctivity (i.e.
dissemination of newly-created material) can be fully met by
us ing space purchased from ar'.other cable company. Therefore,
Palo Alto argues, Los Angeles is free to preclude Preferred
from erecting its own system. Since, as Preferred has already
shown, all of Preferred's programming would be protected
speech, and Palo Alto concedes that there will never be
sufficient space on the "franchised" cable operator's system
-18
available for Preferred to provide all such programming, the
Court should reject Palo Alto's on that basis alone.
However, even were this not the case, Palo Alta's claim that
"leased access" is "adequate" for Preferred is completely
erroneous.
First of ::ill, the existence of some "alternative"
method of communicating one's message does not in and of itself
entitle government to prohibit the particular preferred
by the speaker. Palo Alto's claim is similar to the claim of
the government in Bolger v. Young's Drug Products Corp., ___
u.s. 77 L.:j.2d 469 (1983). In that case, the federal
government successfully attempted to support a ban upon the
unsolicited mailing of contraceptive advertising. The Supreme
Court stated:
The GovernJClent argues that section
300l(e)(2) does nat interfere "significantly"
with free speech because the statute applies only
to unsolicited mailings and does not bar other
channels of communication .... However, this
Court has previously declared that "one is not to
have the exercise of his liberty of expression in
appropriate places abridged on the plea that it
may be exercised in some other place".
77 L.Ed.2d at 479 n.1B (citations omitted).
Secondly, the "alternative" suggestej by Palo Alta
would be woefully inadequate to meet Preferred's First
Amendment interests. Just as the First Amendment rights of a
newspaper publisher would be violated by a requirement that it
purchase space from a rival newspaper in order to disseminate,
Preferred's First Amendment rights would be severely infringed
were it rele9ated the "second class citizenship" urged by Palo
-19
Alto. The use of channel space on the system of another is a
vastly inferior of communicating to cable television
subscribers. Such a method o speech would ma
1
<;:e it impossible
to generate the revenue stream necessary to support local
9
reporting and program production. The viewers would be the
system owner's subscribers, and would pay it, not Preferred.
EVen were it possible to enter into some arrangement for
separate receipt of revenue flowing from Preferred's
programming, it would be impossible to generate the necessary
revenue to engage in the variety of communication which
Preferred desires. As with any of the media, some
lucrative services subsidize the provision of less profitable
9 Palo Alto erroneously shrugs off financial interests as
being outside the ambit of the First AmenJment, cit U.S.
Postal Service v. Council of Greenburgh Civic 453
U.S. 114 (1981). However, Palo Alto seriously misreads
Greenburgh. In that case, the Supreme Court found --contrary
to the facts of this case-- that the public property at issue
was not a public forum. The Court then simply noted that the
merearticulation of an inexpensive poss e use II'/as
insufficient to convert a non-public forum location into a
public forum. In this case, the starting point is that the
public locations in question are a public forum.
Innumerable decisions have recognized that the First
Amendment protects the financial interests of speakers. Se
Grosjean v. American Press Co., 297 U.S. 233 (1936)
(gross receipts tax): Murdock v. Pennsylvania, 319 U.S. 105,
112-14 (1943) (solicitation tax); :>1offett v. Killian, 360
F.Supp. 228, 231 (D. Conn. 1973) (fee charged for lobbying). As
the Supreme Court explained in Schaumberg v. Citizens For A
Better Environment, 444 U.S. 620 (1980), and recently
reaffirmed in Sec. of State of 'land v. J.R. Munson Co., 52
U.S.L.W. 4875 (June 26, 1984 , a restriction upon the ability
to raise revenue affects a First Amendment speaker's ability to
speak at all. UnQer Palo Alto's theory, the Los Angeles Times
could be constitutionally forbidden to charge for its
publication.
-20
journalistic endeavors. "Le3.sed access" on another's system
will never be adequate from stanjpoint, both because of
the limited available sp3.ce and because prospective listeners
to Preferred's speech would already have h3.d to subscribe to
the other cable comp3.ny's services in order to the
ability to receive Preferred's Finally,
Preferred would have nO opportunity to communicate to residents
who chose not to subscribe to the other company's services. In
sum, "leased access" might be adequate for a "backY3.rd vinco
amateur", but is certainly not adequate for the quality and
scale of production which ?referred desires to disseminate.
In addition, the inadequacy of the "leased access"
alternative is exacerbated by the questionable nature of its
availability. At best, availability is limited to the
total number of channels set aside r such use by the existing
lCJ
cable operator. An un'knQlvn nU'lber of persons other t'lan
Preferred will also desire to use some or all of this space.
Preferred may well be left with no access at all, or access
only at undesirable or ever-shifting time slots. Moreover,
since Preferred desires to compete in a substantial way with
10 Palo Alto relies heavily upon the recently enacted Cable
Communications Policy Act of 1984 ("Cable Act "), which it
claims will require provision of five channels for such use.
However, it is unclear whether this requirement is
enforceable. A similar requirement imposed by the FCC upon
cable television operators was found to be violative of the
First Midwest Video Corn. v. FCC, 571 F.2d 1025
(8th Cir. 1978) a'd on other grou;ds 440 U.S. 689 (1979).
-21
any existing cable operator, Preferred will undoubtedly
confront discrimination against it in access to and
being charged for such channel time. The recently enacted
Cable Act specifically permits, and in fact envisions, such
discrimination. Section 6l2(c). As explained in the report of
the Committee on Energy and Commerce, H.R. Rep. 98-934 (August
1, 1984) (Appendix B to A.-nici Brief), Section 612 intentionally
permits such discrimination, including price discrimination
based upon the proposed content of the speech and its estimated
impact upon the existing cable system's revenue.
section does contemplate permitting
the cable operator to establish rates, terms and
conditions whic:1 are discriminatory. is,
nothing in these provisions is intended to impose
a requirement on a cable operator that he make
available on a non-discriminatory basis, channel
capacity set aside r commercial use by
unaffiliated persons ... Thus, in establishing
price, terms and conditions pursuant to this
section, it is appropriate for a cable operator
to look to nature (but not the specific
editorial content) of the service being proposed,
how it will affect the marketing of the mix of
existing services being offered by the cable
operator to subscribers, as well as potential
market fragmentation that might be created and
any resulting impact that might have on
subscriber or advertising revenues.
11. at 51.
Palo Alto asks this Court simply to assume that
"leased access" is adequate to meet Preferred's First Amendment
needs. It does so without the Court knowing anything about
Preferred's plans and desires. In essence, Palo Alto asks the
Court to rule, as a matter of law, that it is impossible for
Preferred to intend any quantity and quality of speech which
-22
could not be adequately carried over severely limited space on
a "leased access" channel. The folly in such a claim was
revealed in the evidence provided tJ the District Court in the
Century Federal case. (See Tow Decl. [Exhibit 5J at Par.
27-33).
In the alleges a cQgnizable violation
of Preferred's First Amendment rights. The possible existence
of "leased access" does not alter this fact.
IV. PALO ALTO 'S CLJ\!'iED IN __ "1CI:W FIRST
P....'1END:1E'IT V.J\L1JES" IS ',mOLLY 'dITHOUT '1ERIT
In an argument exemplifying Palo Alto's lack of
understanding of the First fuJendment, it argues to this Court
that Los Angeles' ::lonopoly franchising scheme should be upheld
because it "enhances II First A:'"lendment values. (knici Br. at
15-18). Pa 10 Al tJ arg.les that the ex i stence of "1 eased access"
requirements S0r:1e:'10'd it "wor t:1 it" to restrict
Preferred's First rights. This is purportedly
because leased access permits dissemination over a cable
television syster:1 at a lower cost to some individual members of
the public than the actual cost to society of doing so. (In
other words, that the "franchised" cable system's subscribers
are subsidizing speech over the access channels). In
Preferred's opinion, it is difficult to imagine a more wrong
headed view of the First Al'"lendment.
The fundamental doctrine of the First Amendment is
that it is not government's role to manage the marketplace of
ideas, nor to impose its opinion about the "best" manner,
-23
method or frequency of speech, nor to make judgments based upon
fears or that certain instances of speech will not
be "in the public interest". In essence, Palo Alto argues that
government is permitted to stop one class of society from
speaking (i.e. that set of persons with the resources and
ability to erect their own cable television systems) in order
to make speech by another segment of society (i.e. those
without the resources --or desire-- to own their own system)
less expensive. Needless to say, Palo Alto has things
backwards.
[TJhe concept that may restrict
the speech of some elements of our society in
order to the relative voice of others is
wholly foreign to the First Amendment.
Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
Palo Alto's flies full in the face of the
Supreme Court's opinion in Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974). In Tornillo, the Supreme Court
squarely rejected the concept that government could require
newspapers to provide access to the public for a "right to
reply" The Court helj that the goals of broad access and
balanced coverage of issues, however desirable, were simply
irrelevant: the First precludes government from
achieving such goals by burdening the speech of others. 418
U.S. at 254. The Court rejected the claim that there is an
exception to this rule \vhen a "natural monopoly" is present.
In this case, Palo Alto does not even posit any
exception to the rule explained in Tornillo. It simply ignores
-24
the rule and boldly argues that "good goals" provide government
11
with carte blanche to take unlimited action.
But the list of good "objectives" conceivable by
the numerous regulatory agencies of the Federal
government and perhaps achievable if they had carte
blanche, is endless. And every act of every agency
would be justified, jurisdictionally sound, and
judicially approved, if values sought were the sole
criteria.
Midwest Video Corp. v. FCC, 571 F.2d 1025, 1042 (8th Cir.
1978), aff'd 440 U.S. 689 (1979).
In any event, Palo Alto wholly fails to connect its
"interest" to the restriction at issue: The exclusion of
Preferred from willing listeners. Preferred desires to expand
the number of speakers. It desires to and intends to provide
speech different than that of any other cable television
economic self-interest provides an incentive for such
differentiation. As noted supra, the City of Los Angeles is
free to pass a generic law requiring the provision of leased
11 As was demonstrated to the District Court in the Century
Federal case, the auctioning off to a monopolist of the
opportunity to speak seriously injures First Amendment values,
not enhances them. (Lee Decl. [Exhibit 6J). The lacrc of press
freedom resulting from the selection and subsequent control
over a member of the press makes it impossible for the press to
fulfill its role as watchdogs over government. As Justice
Stevens commented in a recent First Amendment case:
The court jester who mocks the King must choose
words with great care. An artist is likely to paint a
flattering portrait of his patron. The child who
wants a new toy does not preface his request with a
comment on how fat his mother is.
FCC v. League of ivor:1en Voters, U.S. 52 U.S.L.H. 5008,
5020 (July 2, 1984) (dissenting opinion).
-25
access channels by cable television operators and then to
permit Preferred, and others, to operate subject to such
requirements. Such non-discriminatory, generic regulations
could then be scrutinized by a court to test their
constitutionality. It is only at that point that Palo Alto's
arguments about "enhancement" woul] be properly before the
Court and ripe for assessment.
V. Pl".LO ALTO AND
THE O'BRIEN TEST
In the second half of its brief, Palo Alto argues that
Los Angeles' actions, even if they do infringe upon Preferred's
First Amendment interests, are justified under the balancing
test set forth in United States v. O'Brien, 391 U.S. 367
(1968). However, Palo Alto is wrong -- the O'Brien test does
not apply in the context of this case. Furthermore, even were
the First Amendment infringements at issue here assessed under
the O'Brien standards, they would fail to meet those
requirements.
A. The O'Brien Test Does Not Apply
To The Facts At Issue
Palo Alto summarily asserts "[bJecause the franchise
process is content neutral, the 'track two' test [of Professor
TribeJ, derived from United States v. O'Brien ... applies."
(Amici Br. at 21).
However, even assuming Palo Alto were
correct that Los Angeles' franchising process had been content
-26
12
neutral, that is not the correct test for determining
whether O'Brien applies. Rather, the O'Brien test applies only
where "speech" and "non-speech" elements are combined in the
same course of conduct and government wishes to regulate
"non-speech" aspects for a purpose unrelated to communication.
u.s. v. O'Brien, 391 U.S. at 376-77. Unless the governmental
regulation in question is aimed at the non-communicative
aspects of an action, it is unconstitutional absent a showing
of a "clear and present danger" or equivalent concern. Palo
Alto's own quotation from Professor Tribe establishes this
12 Preferred vigorously contends that Los auction
process was in fact content-based. A review of Los Angeles'
RFP documents (which, of course, Preferred was not even
permitted the opportunity to bring before the District Court
because itR case was dismissed on a Rule 12(b)(6) motion) would
reveal a whole host of questions and requests for information
about the "proposed programming" of the bidders. In fact, the
final "franchise ordinance" contains specific requirements that
Los Angeles' selected operator provide particular 9rO]ramming
on particular channels. (Exhibit D to Palo Alto's Brief at
9-10). By the very nature of a process which places government
in the role of deciding who shall speak, content-based
decisions are almost inevitable. The RFP process acts in part
as a screening device, permitting government to make subjective
and unreviewable decisions based upon philosophy and
viewpoint. For example, it is not likely that Los Angeles
would have ultimately selected a company owned by individuals
had long publ i cly demanded the ous ter of the Hayor and the
City Council members (or an individual who believed that sports
should be seen in person and not on television, or one who
believed in limiting television to non-violent programming).
By putting itself in the position of asking about and selecting
between programming proposals, Los Angeles insured that it
would make a content-based choice. The problem is fundamental
--government should not be choosing at all. Tow Decl.
[Appendix 5J at par. 34-447 Lee Decl. [Appendix 6J at par.
30-49.
-27
point. ( i\i1 Lei B r. t 1 <1 - 2 0)
The Supreme Court :--tas evolved bol:")1isti.:lct'l.ppro7:'1ches
to the resolution of first amendment claims: two
correspond to the two ways in v.fhich government may
'abridge' speech. If a government regulation is aimed
at the communicative impact of an act, analysis should
proceed along what we will call track one. On that
track, a regulation is unconstitutional unless
governnent shows that the message being suppressed
poses a 'clear and present danger,' a
falsehood, or otherwise falls on the
llnprotected sieie of one of 1i :l',H ;:11:! ::::nrt has
drawn to distinguish those expressive acts privilege,1
by the i t"st. rl.lendnent from tflC)se t:) :F)vernment
regulation with only minimal due process scrutiny. If
a government regulation is aimed at the
noncommunicative impact of an act, its analysis
proceeds on what we will call track two.
Tribe, American Constitutional Law at 582. As the Supreme
Court recently made clear, Tribe is correct on this
point:
[GJovernment has legitimate interests in
controlling the non-communicative aspects of the
medium, Kovacs v Cooper, but the Fi r s tt'11
Fourtee;"1.th AJ-;1enlments- tor(3close a Si.1U.,"-J
interest in controlling the communicative
aspect3.
Metromedia, Inc. v. San Diego, 453 U.S. 490, 502 (1981)
(plurality op'n.). As is discussed more fully below, the
interests which Palo Alto asserts are directed toward
"controlling the communication aspects."
This is not a case about illegal conduct. It does not
involve illegal draftcard burning (O'Brien), nor does it
concern the conduct of illegally sleeping in a Park
(Clark v. Community For Creative Non-Violence,
U.S.
- 2:1
posting of signs on non-public forum utility poles (City
Council of Los Angeles v. Taxpayers For Vincent, u.s.
52 U.S.L.N. 4594 (.'-1ay 15, 1984)). Those were all acts which no
one was allowed to do. In each of those cases, the conduct in
question was illegal for anyone and everyone. In contrast, the
placement of wires in public rights-of-way is not illegal for
everyone: public utilities do it, the city's "franchised"
cable company does it, and very probably many others do it
after they secure the normal encroachment permits which
Preferred has requested but been denied. Put simply, Los
Angeles has made the "conduct" in which Preferred wishes to
engage (the placement of wires in public rights-of-way) illegal
because and only because Pre ferred 'II i shes to di s seminate
'h . 13
througn t ose WIres.
The opinion in O'Brien itself establishes that this
case is not a proper one for application of the balarcing test,
and that Los Angeles' actions are unconstitutional.
The case at bar is therefore unlike one
where the alleged governmental interest in
regulating conduct arises in some measure because
the communication allegedly integral to the
conduct is itself thought to be harmful.
was 391 U.S. at 382. The Court then distinguished Stromberg v.
13 This fact is evidenced effectively by Palo Alto's list of
"interests" which it presents on behalf of Los Angeles. Except
for interes t "No. 5", each of those II interes ts II relatas
directly to the quantity and/or quality of speech provided by
cable companies. Only No.5 has anything to do with the
non-communicative aspects of the conduct in question.
-29
California, 283 U.S. 359 (1931), "since the statute there was
at suppressing communication, it could not be sustained
as a regulation of non-communicati ve conduct." As a of
Palo Alto's "interests" establishes, at least in its opinion
Los Angeles trying to "suppress" communication because the
communication would be "harmful" (i.e. by adversely affecting
Los Angeles' ability to extract concessions from its selected
monopolist).
In summary, tne test utilized for incidental
infringements upon First Amendment speech-- unrelated to free
expression-- does not apply to this case. Absent some reason
for altering First Amendment standards --such as applies in the
broadcasting area-- Los Angeles' actions towards Preferred
cannot be justified any more than they could be if applied to a
newspaper publisher. Ne i ther Los A!1gel es nor !?alo Al t'J prov ide
any reason for altering those standards.
B. The of the O'Brien
Test Are Not
Even if the O'Brien test did represent correct
standard under which to assess Los Angeles' restrictions upon
Preferred's First rights, those standards have not
been met.
1. It Is Los Angeles' Interest
Not Palo Alto's Guesses About
Them, '.f'lic'1 '.lust he Ijenti fied
Palo Alto lists five "governmental interests", which
-30
it argues are served by "franchising". However, there is
nothing in the record before this Court, or before the court
below, to indicate whether any or all of these "interests" were
sought to be furthered by Los eles in taking the alleged
- - - ~ ' - - - -
actions. Interests asserted as justifications for
infringements upon speech must be "carefully scrutinized to
determine if they are only a public rationalization of an
impermissible purpose." Metromedia, Inc. v. San Diego, supra,
453 U.S. at 510. In this case, the Court obviously has no way
to know what relevance, if any, Palo Alto's asserted interests
have in the context of this case. To accept such an interest
without any indication that it is in fact an interest of Los
Angeles, would be to invite acceptance of mere "public
ra t ional i za t ions." Since Los Angeles, i tsel f, has never
presented the Court with its proposed justifications, Preferred
submits that the Court has no relevant interest before it to
assess.
2. Palo Alto's Suggested "Interests"
Are Improper
One of the requirements of the O'Brien test is that
"the governmental interest [be] unrelated to the suppression of
free expression."
391 U.S. at 377. As noted above, four out
of the five interests suggested by Palo Alto are directly
related to expression, and hence are improper interest in the
first place.
Despite Palo Alto's (and presumably Los Angeles'
ins i s tence that it cr)uld "do bet ter" than the free marketplace
of ideas, the First Amendment forbids this kind of
-31
interference. It is not a proper governmental goal to try to
"do better". Attempts to "manage" a medium of expression are,
quite simply, beyond the proper police power of a municipality.
3. "Cream Skimming II
Palo Alto contends that there is some
governmental interest in insuring that a cable television
company which offers to serve any customer within a certain
area (as determined by Los Angeles) will offer to serve every
resident within that area. There are several problems with
this suggestion. First, Palo Alto simply assumes that by
terming a goal a "policy objective" it is entitled to obtain
it. Yet cable television is not a public utility and does not
provide an essential service. Television Transmission v. Pub.
Util. Com., 47 Cal.2d 82 (1956). An attempt to compel service
to all areas, regardless of cost, is therefore
unconstitutional. Frost v. Railroad Commission of California,
271 U.S. 573, 583 (1926); Video Corp. v. F.C.C., supra,
571 F.2d at 1051. See, Cox Cable Communicatio:1s, Inc. v.
Simpson, 569 F.2d 507, 518-519 (D.Neb. 1983). To the extent
(if any) that such a requirement could be upheld as a
reasonable regulation of a monopolist, Palo Alto implicitly
relies upon the natural monopoly theory which it admits is
unproven.
Second, even assuming arguendo that such a requirement
is otherwise within Los Angeles' power, Palo Alto suggests no
reason why a less onerous alternative is not available. Los
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Angeles could simply pass an ordinance requiring universal
service. By so doing, Los Angeles would insure that any cable
television operating within the South Central area
would offer service to all residents thereof. This procedure
\vould fulfill this purported interest even better than a
monopolistic franchising process, because would be
provided a choice between different companies.
Third, there is no indication on this record that
Preferred would be unwilling to offer service to every resident
within the South Central area. Preferred is, in fact, not only
willing but anxious to do so, and would already be providing
such service were it not for Los Angeles' refusal to permit
it. Even accepting Palo Alto's superficial description of
cable television economics (Amici Br. at 22-24), any reasonable
analysis of the possibility that "cream skimming" would occur
must of necessity include the particular characteristics of the
market at issue. A sinilar argument made by Palo Alto in the
Century Federal case was totally repudiated based upon the
facts in that market. Tow Decl. [Appendix 5J at Par. 13-19.
Finally, Palo Alto insufficiently identifies any nexus
between this policy "interest" and the exclusion of Preferred.
Los Angeles already has a commitment from a cable company to
provide service throughout the relevant area. Therefore, even
if Preferred did not serve all areas, every resident would have
access to at least one company. Palo Alto's only suggestion
otherwise is a return to the natural monopoly theory which it
claims not to rely on. (Amici Br. at 28).
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4. Access Channels
process as related a interest in obtaining
access channels. Again, the only asserted nexus between this
interest and Preferred's exclusion is the unproven suggestion
that cable television is a natural monopoly. Los Angeles has
already obtained access channels from one cable television
operator. Therefore, Los Angeles' interest in this regard has
already been fulfilled.
As in the case of "cream skimming", the proper method
for Los Arlgeles t:') furt:ler an interest in obtaining access
channels would be to pass a :')rdinance requiring t11em.
Preferred believes that any such requirement would be
unconstitutional. Hiami Herald Publis'Ling Co. v. '1'0 1::' "1 i 110, 418
u.s. 241 (1974) 7 Midwest Video Corp, v. F.C.C., supra, 571 F.2d
14
at 1052-57. As discussed above in Section IV, i:1j'-1ry to
Preferrei's ric)'lts Cd'1f1.)t be jclstified by the expansion of
someone e1 I s
14 L.:11icated some willingness
(erroneously, Preferred submits) to accept such control over
programmi:1g (see, e.g., Community Communications Co. v.
Boulder, 660 F.2d 1370 (10th Cir. 1981)), have required
government to first establish that economic scarcity made such
control a nec2ssity. Here, Palo Alto does not rely on
economic scarcitJ.
-1't
require this Court to hold that the Los Times could
constitutionally be given a government-guaranteed monopoly
within Los Angeles County so long as it agreed to permit the
public free access to a few pages of the paper.
Finally, even assuming that the obtaining of access
is a proper governmental goal, the obviously less
onerous alternative available to Las would be to spend
15
public money in order obtain that "public good." Though
the City may have a valid interest in raising revenue (or
reducing expenditures), it may not do so by inordinately
burdening First Amendment speakers. Minneapolis Star v.
Minnesota Commissioner of Revenue, U.S. , 75 L. Ed 2d 295
(1983); Grosjean v. American Press Co., 297 U.S. 233 (1936).
In essence, Palo Alto argues that Preferred should be excluded
in order to finance public access channels that neither the
City nor the public are will ing to pay for.
6. Computer-to-Computer Data
Palo Alto suggests that Preferred's exclusion could be
justified by the "percieved risk" that certain computer-to-
Palo Alto's argument essentially boils down to
the follo',dng: "By excluding Preferred and all other
cable television operators, Los can guarantee a
monopoly to one selected person. Since that person will
then make monopoly profits, he will agree to give some of
those profits to the City or to the public in exchange for
protection from competition. This will save the City
money. "
-35
15
computer data transmission services will not develop "quickly
enough." (Amici Br. at 26). Preferred could hardly have
imagined a better illustration of Palo Alto's misunderstanding
of the First Amendment. Palo Alto simply identifies something
it thinks would be "nice", states that a city will "forfeit the
necessary to obtain" (ld. at 29) this nice thing unless it
provides a government protected monopoly to one selected
speaker, and then argues that the First permits the
exclusion of all speakers but one because of the policy
objective of "getting something nice". This exact argument
could be made in support of the monopolization of any medium of
speech. A bookseller might well
be willing to subsidize a free lending library for the poor; a
government-sanctioned monopoly movie theater might well admit
senior citizens at 75% off regular ticket prices; and a
government-franchised newspaper would certainly be willing to
provide free guest column space for the Mayor and City
Councilmembers. Under Palo Alto's theory of the First
Amendment, no content-neutral burden upon free speech would
ever be held unconstitutional unless it was completely
irrational and arbitrary.
Each of the objections described in the preceeding two
subsections also apply with full for2e to Palo Alto's claimed
interest in data transmission. There is no proper nexus
between Preferred's exclusion and the interest sought; there is
no reason why a generic, non-discriminatory ordinance could not
fulfill the purported interest; and this interest could
properly be met in a less restrictive fashion by the direct
-36
purchase or subsidization of such services. Furthermore, the
provision of most data transmission services by a cable
television op,=r3.t)( i.s \vithin the State of California.
Cal. Public Utility Commission Decision No. 84-06-113 (June 13,
1984) In addition, a municipality's attempts to force upon a
cable television operator the provision of such common carrier
functions amounts to an unconstitutional taking violative of
the Fifth Amendment. Frost, Video, Cox Cable, all
supra.
7. DisruptlQn of 5-")f-;lay
Lastly, Palo Alto asserts that Los Angeles has an
interest in minimizing disruption of its rights-of-way. This
is undoubtedly true, and in fact amounts to the only
non-expression related interest proposed by Palo Alto.
H042ver, Palo Alto seriously misunderstands the significance of
this interest :tn1 ,-=xtent to whic''1 Pi rst A:nendment
permits reliance upon it to b'-.lxden free speech. Hhat Palo Alto
fails to ,:'L1:: .1,l')i,-i,,; ':) ,,'11:::'1
Preferred desires access are a "public orc1u for
communication". Cinevision Corp., supra, 745 F.2d at 569-71.
In Perry Education Assn. v. Perry Local Educators'
Assn., 460 U.S. 37, 44 (1983), the Supreme Court described
three types of public forums, with accompanying public access
rights ti1at vary "depending on the character of the property at
issue." The first category includes areas such as streets and
parks, "which by long tradition or by government fiat have been
-37
devoted to assembly and debate." ld. at 45. The second
category includes public property, such as municipal
auditoriums, which, though not traditionally used r a
particular type of communicative activity, have been
for use by the public as a place for SUC:1 "tel: -.Ii ty.
44-45; Cinevision Corp., supra, 745 F.2d at 569-71. The third
category of public property is that "Hhich is not by tradition
or designation a forum for public communication." ld. The
identical broad free speech rights apply to communication in
either of the first tHO categories, Cinevision Corp. at
16
570_71.
property within either the first or second categories of public
forums, this Court need not decide cv
1
11c:h 1:1c1udes t:1e
public rights-of-way at issue in this case. There can be no
real doubt the Los fu:1geles has designated those rights-of-way
for use by cable television communicators; it has already gone
. 17
so far as to grant permission to one such communlcator,
16
EV2a in thO'! third cate9:Jry,vhic:l includes SUC
1
1
property as county jails v. Florida, 385 U.S. 39
(1966)) and military bases (Unit3d v. 710
F.2d 1410 (9th Cir. 1983)) the government is limited to
"reasonable" regulations designed to reserve the property for
its intended use. Cinevision Corp., supra at 569-70 n.8.
17 It is irrelevant that L:::>s may 11ave "intended
(Le. desire1) t:1d.t the public rights-o:-vfay be us by o:11y
one cable television operator. Cinevision Corp., supra at
570. (City permission, even though only to a single entity, to
(Footnote continued on next page)
-38
thus the compatibility of such use. Grayned v.
City of Rockford, 408 U.S. 104, 116 (1972). In addition, the
Cal i fornia Legi s lature has "opened" the forull 0 f publ ic uti 1 i ty
b.cili ties for ;13e by ca1;le television operators allover the
State, by Cal.Pub.Util. Code Section 767.5, which
declares that such use is the consumption of a "public utility
California". ( S u bd . ( b) ) In short, at least until Los
Angeles and the State of California withdraw those
rights-of-way from use by the public, they remain a public
forum for use by cable television operators.
The rules governing access to public forums is that:
II [G]overnment fnay '10:' prohibit all
communicative activity. For the state to enforce
3. content-basei 8xcl:..13iYl it ,,'lS!: it'l
regulation is f18c''!')?1. ... I t:) :';'3rve a compelling
state interest and that it Ls narrowly irawn to
achieve that end. The state may also
enforce regulations of the time, place, and
,Ud:lrlf3C ;)f expression \-Jhich are
1Xe narrc:Mly t'3.il')"Ce"1 ::) .. ';_]"'1:
government interest, and leave open
alternative channels of communication."
Moreover, in formulating a content-based or a
time, place, and manner regulation, government
must select the means of furthering its interest
that is least restrictive of First
rights.
Footnote continued)
communicate to tiV3 public, transformed public rty int;) .3.
public forum for .:;!CprI3ssive ,'3.ctivity). The thrust of the
public forum doctrine is precisely that governments are not
permitted tG differentiate between different members rJ:(
segments of:
-'3'1
including the public rights-of-way, than those imposed by other
First Amendment speakers.
It
(CT 1 at Par. 6).19 This
allegation must be accepted as true at this stage in the
pleadings. Moreover, such a concept makes
newspaper vending boxes on public rights-af-way
permanently restricts p31estrian traffic, invites litter
problems and entails repeated traffic disruption every morning
when a truc'<:: stops toee U 11 tht=ll.
television wires are indistinguishable from each other and
the various utility facilities adjacent to them7 installed
cables are virtually maintenance-free.
A::;lib reference to "mi:<imizing disruption" is, quite
simply, legally insufficient to enforce the total exclusion of
a particular speaker.
"in excuse to li.:1it to 'Joe the number of news!)i'l.pers/
insist upon controlling the "monopolist" that it had itse1.::
crea ted) .
disruption.
The truth is that the "disruption" aspect of cable
television dissemination is simply a "red herring." As is
Once again, this allegation has already been
demonstrated to be true in the Century Federal litigation. See
Exhibits 2-4, that, ..;it:1!l.,rhr
r
1 (;).',:)le televisL)n
constclction methods, t:,ere is no signi ficant added disrupt iO,1
or inconvenienc3 from having t./O, one, cable
television companies construct their systems at the same time.
Furthermore, Exhihit 4 also that
public rights-of-way more than do cable television companies.
-41
19
apparent from the four other "interests" proposed by Palo Alto,
the real purpose in conducting a "franchising process", and
prohibiting speech by the "losers" and "non-participants," is
to provide a rneDlod for a city to use its practical control
over public rig"':1ts-of-way :l.S a '''.Je'1p:)n'' '",ith 'tThich to (J':d'1
control over aspects of speech completely to the U39
of those rights-of-way. Community C.").n"1u'1ic'3.tions 2'1. v.
Boulder, supra, 630 F.2d at 719 (Markey. C.J. dissenting). It
is precisely such a process that the "public forum" doctrine
precludes.
VI.
Palo Alto suggests two reasons why this Court should
, <
a f fi LU the i s iO(l::>f the court helo,,",.
nas merll...
Palo Alto enunciates its novel view of the:! First rlJ.'":lendment, but
provides no reason for applying its s,lg99S tions to Prefen:',':!l
but not to any other First Amendment spea"8c.
IIII
111/
1/11
11//
111/
IIII
111/
11//
1/11
/1/1
-42
Alto's ar3uments, supported hodge-podge
of inapposite cases, are reductio ad absurdun: its theories
are wrong when applied to newspapers, to book-sellers, to
demonstrators, and to every other type of speaker. They are
equally when to the facts of this case.
Respectfully submitted,
/ /
1/ (" / ;?
Dated: /'
Robet't ',1. Br CifJSOn

1121 "L" Street, Sui te 803
Sacramento, California 95814
(916) 447-2000
Attorneys for Appellant
-43