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Court allows temporary public access channel closing

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    NMU         MAINE         Broadcasting         Jun 5, 2002    

Court allows temporary public access channel closing

  • A city in Maine can temporarily shut down its public access television station while it develops new rules for its use, a federal judge ruled, cautioning that the new rules may not ban speech for being offensive.

Comparing a public access television station to a public park, a federal judge in Portland, Maine, ruled May 24 that a temporary moratorium to shut down a public access station in Biddeford is a content neutral restriction that does not violate the First Amendment.

Describing both a park and public access station as a forum for expression, U.S. District Court Judge Brock Hornby explained that “government does not have to provide the public park (by analogy, the public access channel) in the first place; but that once it does so, it cannot favor certain speakers at the expense of others.”

On May 13, the Biddeford City Council adopted an emergency ordinance to shut down the city’s Community Access Television Center. In a press release, Biddeford Mayor Donna J. Dion said the decision “was the result of the recent court recommendation that indicated we needed to clarify our operation of the access station through our ordinance.”

Biddeford resident Richard Rhames filed suit on May 17 claiming that his First Amendment rights had been violated because he is unable to broadcast his views over the public access channel. Rhames requested a temporary restraining order that would force the city to reactivate its public access channel so he could resume his broadcasts.

In analyzing the moratorium, Hornby said “the First Amendment prevents government from censoring speech by citizens, but allows government to enforce content-neutral rules regulating time, place or manner of speaking — if the rules are narrowly tailored and leave open ample alternative channels for communication.”

Hornby concluded that Biddeford has a legitimate interest in passing a moratorium of reasonable duration while it revises its public access station rules. He said the ordinance creating the moratorium was narrowly tailored and not intended to censor speech.

While the result was not what Rhames had requested, David Lourie, a cooperating attorney for the Maine Civil Liberties Union who is representing Rhames, said he is reasonably satisfied with the ruling.

Lourie said that Hornby recognizes that the city cannot take a long time rewriting the rules. He noted, too, that the judge stated that if the new rules followed the sentiments of some counsel members in ensuring that offensive material does not appear, that would be a clear First Amendment violation.

Mayor Dion said she hopes the station will return within 90 days, although recent meetings have not been as productive as she would have liked.

She said the station had legal problems before because the public access channel ran live programming and part of its regulations required the approval from every person whose name was used on the air.

In October 2001, the City Council voted to ban Biddeford resident Dorothy Lafortune, who produced and hosted “The Maine Forum” each week, from the public access station for violation of her user agreement. Lafortune sued the city for violating her First Amendment rights and was permitted to continue broadcasting while her case was decided.

In an April 30 advisory opinion, U.S. Magistrate Judge David M. Cohen said Biddeford’s practice of requiring broadcasters to secure permission to use people’s names on the air violated the First Amendment.Dion said the city “does not want to censor what people are saying.” However there have been some verbally abusive and inflammatory statements made on air, said Dion, adding that “there is a way for people to say the same thing, but not use inappropriate words.”

(Rhames v. Biddeford; Lafortune v. Biddeford; Counsel: David Lourie) JLW

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