United States District Court, D. New Jersey
WILLIAM J. BRENNAN, Plaintiff,
WILLIAM PATERSON COLLEGE; TOWNSHIP OF WAYNE; BRIAN GORSKI; SANDRA L. MILLER; JOHN DOES 1-5, and JOHN DOES 1-10, Defendants
For WILLIAM J. BRENNAN, Plaintiff: DONALD F. BURKE, LAW OFFICE OF DONALD F. BURKE, BRICK, NJ.
For WILLIAM PATERSON COLLEGE, SANDRA L. MILLER, BRIAN GORSKI, Defendants: CHRISTOPHER THOMAS HUBER, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, HUGHES JUSTICE COMPLEX, TRENTON, NJ; JENNIFER J. MCGRUTHER, LEAD ATTORNEY, STATE OF NEW JERSEY, DEPARTMENT OF LAW & PUBLIC SAFETY, DIVISION OF LAW, TRENTON, NJ.
For TOWNSHIP OF WAYNE, Defendant: JOSEPH M. MORRIS, RYAN P. MULVANEY, LEAD ATTORNEYS, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, NEWARK, NJ.
For TOWNSHIP OF WAYNE, Cross Claimant: JOSEPH M. MORRIS, RYAN P. MULVANEY, LEAD ATTORNEYS, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, NEWARK, NJ.
For TOWNSHIP OF WAYNE, Cross Defendant: JOSEPH M. MORRIS, RYAN P. MULVANEY, LEAD ATTORNEYS, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, NEWARK, NJ.
KEVIN MCNULTY, United States District Judge.
The Plaintiff, William J. Brennan, brings this suit against the Township of Wayne (" Wayne" ), as well as William Paterson University (" WPU" ) and two of its administrators, Brian Gorski and Sandra L. Miller (collectively, the " WPU Defendants" ). Brennan, who produces a local television show on a television station
owned by Wayne and operated by WPU, alleges that Defendants have violated his rights under the First Amendment to the United States Constitution, the New Jersey Constitution, and the Cable Communications Policy Act of 1984, 47 U.S.C. § § 521 et seq. (the " Cable Act" ). Defendants have moved to dismiss Plaintiff's claims on a variety of grounds, while Plaintiff has moved for entry of partial summary judgment, contending that certain guidelines developed and imposed by WPU are facially invalid.
I will deny the motions, with one exception. As a matter of law, the Cable Act bars claims for damages against a public entity like Wayne; I will therefore grant Wayne's motion to dismiss the claims insofar as they seek damages only.
I. FACTUAL BACKGROUND
Plaintiff Brennan, a resident of Wayne Township, New Jersey, produces a local television program called " The New Jersey Civil Circus." (Pltf's L. Civ. R. 56.1 Statement ¶ ¶ 1-2; WPU Dfds' Response Statement at ¶ ¶ 1-2). His stated purpose " is to present information to assist individuals and the general public in making informed decisions about topics including but not limited to preventing political corruption and insuring ethics in government." (Certification of Pltf. (" Brennan Cert." ) [ECF No. 66-3] at ¶ 3). On the show, he interviews guests, discusses newspaper articles, and occasionally takes a humorous approach. ( Id. at ¶ ¶ 4-5). There is no dispute that Brennan engages in political speech on his program. (Pltf's Statement at ¶ 15; WPU Dfds' Resp. at ¶ 15).
Defendant Wayne Township has a franchise agreement  with the cable-television provider known as Cablevision. It is a condition of the agreement that Cablevision provide two channels for the broadcasting of " public, educational, or governmental" programming. (Pltf's Statement at ¶ 4; WPU Dfds' Resp. ¶ 4; Wayne's Resp. Statement at ¶ 4). The two channels granted to Wayne for these purposes are channels 76 and 77. (Pltf's Statement at ¶ 6; WPU Dfds' Resp. at ¶ 6; Wayne's Resp. at ¶ 6). Wayne controls the management and operation of channel 77. (Pltf's Statement at ¶ 7; Wayne's Resp. at ¶ 7). WPU, a state university located in Wayne, controls and operates channel 76 pursuant to an agreement with Wayne. (Pltf's Statement at ¶ ¶ 8-10; WPU Dfds' Resp. at ¶ ¶ 8-10; Wayne's Resp. at ¶ ¶ 8-10).
Defendants Sanda L. Miller and Brian Gorski are employed by WPU. (Pltf's Statement at ¶ 11; WPU Dfds' Resp. at ¶ 11). Brennan contends, and WPU Defendants dispute, that Miller and Gorski " exercise editorial discretion in determining whether programming will be aired on public access cable television channel 76." (Pltf.'s Statement at ¶ 25; WPU Dfds' Resp. at ¶ 25). Plaintiff contends, and WPU Defendants dispute, that Gorski advised Plaintiff on October 1, 2010, that WPU refused to air " The New Jersey Civil Circus" because the show violated " general rules of conduct." (Pltf's Statement at ¶ 26; WPU Dfds' Resp. at ¶ 26). Brennan
and the WPU Defendants agree, however, that Gorski advised plaintiff, via email, that " use of the word 'tit' in his program was unacceptable and further stated that mentioning a telephone number during the broadcast would 'possibly' be considered public dissemination of private information and 'possibly' constitutes a security concern." (Pltf's Statement at ¶ 27; WPU Dfds' Resp. at ¶ 27). According to Brennan, however, " 'tit' was used in the show as a description of unethical politicians obtaining government benefits and payments--the 'public tit'--and was not used in a lewd or lascivious manner." (Pltf's Statement at ¶ 28). After receiving and following the above warning, Brennan submitted episode three of his program to Gorski on or about April 28, 2011, requesting its airing. (Pltf's Statement at ¶ 29; WPU Dfds' Resp. at ¶ 29). Brennan contends, and WPU Defendants deny, that he edited episode three to conform to content-based restrictions imposed by WPU and WPU nonetheless refused to air the episode. (Pltf's Statement at ¶ 31; WPU Dfds' Resp. at ¶ 31).
On or about May 1, 2011, Brennan declared his candidacy for a seat in the New Jersey State Assembly. (Pltf's Statement at ¶ 30; WPU Dfds' Res. at ¶ 30). He alleges that WPU refused to air episode three of his program because it believed that Wayne Township Ordinance 23, section 5A-8 prohibited airing a program involving a political candidate. (Pltf's Statement at ¶ 31; WPU Dfds' Statement at ¶ 31). That Wayne ordinance did indeed limit use of public access channels by political candidates. (Wayne's Resp. Statement at ¶ 32). Brennan asserts that Wayne's ordinance wrongfully " regulat[es] the content of public speech in the broadcasts on the channels it operates and controls." (Pltf's Statement at ¶ 33). He also contends that the ban on candidate's participation in the production of any program is unlawful ( id. at ¶ 34); that it has a chilling effect on speech ( id. at ¶ 35); and that, on June 2, 2011, it was wrongfully used by WPU to deny Brennan access to Channel 76 ( id. at ¶ ¶ 36-37).
It is undisputed that defendant Sandra Miller, in her capacity as director of instruction and research technology, wrote to Brennan that, under the aforementioned ordinance, " [a] host/coproducer who becomes a candidate will not be permitted to have a role in the production of the program." The upshot of the letter was that " [t]herefore, we regret to inform you that we cannot air your piece." ( Id. at ¶ 38; WPU Dfds' Resp. at ¶ 38).
Thereafter, Wayne apparently backpedaled. In an October 27, 2011 letter (10 days after this action was filed), Wayne agreed to " air the subject programming at Mr. Brennan's request." (Pltf's Statement at ¶ 40; WPU Dfds' Resp. at ¶ 40; Wayne's Resp. at ¶ 40). Brennan contends, and the WPU defendants deny, that Wayne acknowledged that section 5A-8 of the ordinance could not be used to deny him access to its public access channels. (Pltf's Statement at ¶ 39; WPU Dfds' Resp. at ¶ 39; Wayne's Resp. at ¶ 40). Brennan also contends, and the WPU defendants deny, that, given Wayne's position, WPU advised that it would air an edited version of Plaintiff's show, (Pltf's Statement at ¶ 41; WPU Dfds' Resp. at ¶ 41), but further insisted that the content of the program " compl[y] with the University's general rules of conduct," which are administered by WPU's " Cable Advisory Board." (Pltf's Statement at ¶ 42; WPU
Dfds' Resp. at ¶ 42).
As to WPU's " rules of conduct," Brennan complains that he was not provided any guidance and was left to guess about their contents (something WPU defendants deny). (Pltf's Statement at ¶ ¶ 43-44; WPU Dfds' Resp. at ¶ ¶ 43-44). Brennan eventually obtained  a copy of WPU's " Education Access & Streaming Channel, WPTV- WPTV Operating Policies, Procedures and Guidelines," which states:
WPTV has the right and responsibility to determine whether the programming on the station is consistent with its education mission. Any prospective programming that would limit WPTV's right to provide educational access cablecasting service or otherwise inconsistent with William Paterson's educational mission will be deemed as grounds for denial of access for that program.
f. The Cable Advisory Board reserves the right to (1) reject content, (2) alter broadcast times, (3) limit broadcast times..., and/or (4) edit content for space limitations, clarity, and aesthetics, in the interest of good broadcasting practices and taste.
h. For editing purposes, the Cable Advisory board reserves the right to make changes, deletions, corrections, or additions as is necessary in order to maintain reasonable standards of clarity and good taste. Content must be submitted at least (2) weeks prior to the date of your event. This allows us time to process your request.
(Pltf's Statement at ¶ 45; WPU Dfds' Resp. at ¶ 45). Brennan complains that WPU did not furnish him with this policy. (Pltf's Statement at ¶ 46). The WPU Defendants reply that he never requested it. (WPU Dfds' Resp. at ¶ 46).
Brennan, erroneously in my view, alleges that the WPTV Operating Policies, Procedures and Guidelines also state the following:
The legislative history suggests that PEG [Public, Educational, and Governmental] channels were intended to be " the video equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet. They provide groups and individuals access to electronic media with the opportunity to become sources of information through this method of communication.
(Pltf's Statement at ¶ 48 (citing Brennan Cert Ex. C)). As the WPU Defendants point out, the Policies, Procedures and Guidelines do not contain those words concerning legislative history. The quotation seemingly comes from the House Report for the Cable Act of 1984. H.R. Rep. No. 98-934.
At any rate, Brennan complains that WPU's WPTV guidelines are vague (particularly in their use of a " good broadcasting practices and taste" criteria). In his view, they impermissibly give " unbridled discretion to [WPU] to reject proposed programming." ( Id. at ¶ ¶ 50-51).
II. PENDING MOTIONS
The currently operative complaint is the Second Amended Complaint. Wayne moves under Fed.R.Civ.P. 12(b)(6) for the
dismissal of Plaintiff's claims for money damages and attorney's fees, citing Section 555a(a) of the Cable Act. That section, says Wayne, bars such claims for damages against government entities, and limits ...