speech" or "freedom to maintain [one's] own beliefs without public disclosure."
The factors which formed the basis for the Pruneyard decision do not dictate a different result in this case. First, there is no need for the plaintiff Homeowners Associations or Developers to disavow a connection with speech broadcast by NYTCA. There is no reason to believe that anyone will assume the plaintiffs endorse messages transmitted into an individual's home at the individual's own request. Plaintiffs have certainly presented no credible evidence indicating otherwise. Second, the Mandatory Access Law does not dictate the entry onto plaintiffs' property of any particular message. Even if Section 49 discriminates against unfranchised cable operators, it does so without regard to the content of the speech conveyed by such companies. Furthermore, Section 49's discriminatory nature, if any, does not change the fact that mandatory access causes no reduction in a homeowner's ability to regulate the entry of speech into his or her home.
NYTCA's attempt to provide service to the inhabitants of the four Developments, pursuant to the Mandatory Access Law, does not threaten any damage to plaintiffs' First Amendment interests. Any loss of control over speech-related activities in the Developments will be incurred only by the entrepreneurs seeking to sell homes therein or by organizations representing individual homeowners in the aggregate. Such effects will not be experienced by individual homeowners, and in this action, the First Amendment interests identified by plaintiffs are of the kind which attach to individuals.
The individual homeowners in the four Developments will be protected by some of the charming features of cable television: it is possible to pick and choose program packages one wishes to enjoy; and these programs are delivered directly into the privacy of individual homes. In order to avoid exposure to particular programs, one need only decline to pay for the services of the operator who provides them. In light of the foregoing, the court will grant summary judgment in favor of defendants as to count two of the Complaint.
Defendants' motion to dismiss the Complaint, as amended, for failure of the plaintiffs to establish standing to sue, is granted as to the first count of the Complaint and denied as to the second count of the Complaint. Defendants' motion to dismiss, or in the alternative, for a stay of proceedings on grounds of abstention is denied. Defendants' motion for summary judgment is granted as to the second count of the Complaint, as amended. In light of the foregoing dispositions, the court will deny plaintiffs' motion for summary judgment or, in the alternative, for a preliminary injunction. Accordingly, the complaint is dismissed. An appropriate order will be entered.
This matter having come before the court on the 4th day of April, 1985; and
The court having considered the submissions and arguments of the parties, and the record in this case; and
For the reasons stated in the court's opinion filed this date,
It is on this 29th day of August, 1985, hereby ORDERED that:
1. Defendants' motion to dismiss on the grounds that plaintiffs have failed to establish standing to sue is GRANTED, as to the first count of the Complaint, as amended, and DENIED, as to the second count thereof;
2. Defendants' motion to dismiss the Complaint, or in the alternative, for an order staying proceedings on grounds of abstention, is DENIED;
3. Defendants' motion for summary judgment, pursuant to Fed. R. Civ. P. 56, is GRANTED as to the second count of the Complaint, as amended; and
4. In light of the foregoing dispositions, plaintiffs' motion for summary judgment or, in the alternative, for a preliminary injunction, is DENIED, and the Complaint is DISMISSED.