___________
No. 96-3645
___________
Jay B. Marcus; Marcus For *
Congress, a political committee;*
The Natural Law Party of Iowa, *
a political committee; Edward T.*
Rusk, of the Working Class *
Party; Michael Cuddehe; Michael *
Dimick; Rogers Badgett; Peter *
Lamoureux; Fred Gratzon; Susan *
Marcus, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Iowa Public Television, a state *
agency; Daniel K. Miller, in *
official capacity, *
*
Appellees. *
__________
ORDER
Filed: October 11, 1996
__________
Before FAGG, MAGILL, and BEAM, Circuit Judges.
___________
MAGILL, Circuit Judge.
Jay B. Marcus, Marcus for Congress; The Natural Law Party of Iowa,
Edward T. Rusk, of the Working Class Party; Michael Cuddehe; Michael
Dimick; Rogers Badgett; Peter Lamoureux; Fred Gratzon; and
Susan Marcus (Movants)1 sought equitable relief against Iowa Public
2
Television and one of its officials (IPTV) in the district court. IPTV
had scheduled "joint appearances" of Democratic and Republican candidates
for United States Representative for each of Iowa's five congressional
districts on its program Iowa Press. Movants sought injunctive relief
requiring IPTV to "include all legally qualified candidates in the joint
appearances," Compl. at 10, as well as other injunctive and declaratory
relief. The district court denied a preliminary injunction and, following
a trial before the court and an advisory jury,3 denied permanent injunctive
relief. Movants' appeal of this denial of injunctive relief is pending
before this Court.
IPTV has two scheduled joint appearances still to be broadcast. On
Sunday, October 13, 1996, the Democratic and Republican candidates for
United States Representative for Iowa's First Congressional District will
appear on Iowa Press, and on
1
Jay B. Marcus is the Natural Law Party of Iowa (NLP)
candidate for United States Representative in Iowa's Third
Congressional District; Rusk is the Working Class Party candidate
for United States Representative in Iowa's Third Congressional
District; Cuddehe is the NLP candidate for United States
Representative in Iowa's First Congressional District; Dimick is
the NLP candidate for United States Representative in Iowa's Fifth
Congressional District; Badgett in the NLP candidate for United
States Representative in Iowa's Fourth Congressional District;
Lamoureux is the NLP candidate for United States Representative in
Iowa's Second Congressional District; Gratzon is the NLP candidate
for the United States Senate in Iowa; and Susan Marcus is a
registered voter in Iowa who wishes to see these aforementioned
political candidates debate with Democratic, Republican, and other
qualified congressional candidates on the Iowa ballot.
2
The Honorable Charles R. Wolle, United States District Judge
for the Southern District of Iowa.
3
Although seeking only equitable relief, the Movants filed a
jury demand with the district court on September 27, 1996. The
district court impaneled a jury "[w]ithout deciding whether the
case presented issues properly triable to a jury," Mem. Op. at 2,
and the district court made "the same findings [as the jury] based
on its independent consideration of the evidence." Id. at 4.
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Sunday, October 20, 1996, the Democratic and Republican candidates for
United States Representative for Iowa's Fourth Congressional District will
appear on Iowa Press. Movants have brought this motion for emergency
injunctive relief before this Court, requesting that IPTV be enjoined from
broadcasting these joint appearances "unless all legally qualified
candidates are permitted to participate on an equal basis." Emergency Mot.
at 1. Because we conclude that injunctive relief is not warranted at this
point in this case, we deny the motion.
I.
IPTV is an Iowa state actor, and is governed under the provisions of
Iowa Code § 256.80-256.90. IPTV produces and broadcasts Iowa Press, a "30-
minute news and public affairs program [which] airs twice each Sunday at
noon and 7:00 p.m." Movants' App. at 14. Beginning on September 22 and
running for a total of five weeks, Iowa Press scheduled "co-appearances by
the major candidates seeking to represent Iowa's five congressional
districts in the Iowa delegation in Washington D.C." Id. The major
candidates were all Democrats or Republicans. Under the program's format,
a host and a team of political reporters ask questions of the candidates,
who would have an opportunity to present their views to the audience.
Movants made repeated requests to IPTV that they be allowed to
participate in the joint appearances. IPTV declined to allow other
candidates to participate in the scheduled joint appearances, concluding
that they were not newsworthy. IPTV did offer to include Movants and other
candidates to present their views on other programs presented by the
network. Dissatisfied with this offer, Movants brought suit against IPTV
for injunctive and declaratory relief on September 13, 1996. The district
court denied Movants' motion for preliminary injunctive relief on September
24, 1996, holding that they had failed to demonstrate
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irreparable harm and that they did not establish a likelihood of success
on the merits.4 Trial was set for September 30, 1996, and a jury was
impaneled.
After the presentation of evidence, including witness and expert
witness testimony, the jury returned a special verdict with a series of
interrogatories. Based on an independent review of the evidence, the
district court adopted the jury's findings, and made additional findings.
The district court found that, although not intended by IPTV to be
"debates," the scheduled joint appearances
4
The district court found that:
Plaintiffs have not proved irreparable harm or that
on balance the harm they would suffer would outweigh the
harm caused by granting an injunction. There is no
showing in this record that their scheduled appearances
on Iowa Public Television programs other than "Iowa
press" would be less valuable to them. Voter attention
given to a program aired closer to the time of the
elections may well have a more favorable impact on voters
than a presentation on the Iowa Press programs now
planned. On balance, an injunction's harm to the
exercise of defendants' journalistic discretion would
outweigh any harm plaintiffs might suffer from not
appearing on the planned Iowa Press shows.
Plaintiffs have not established a likelihood of
success on the merits. The question of whether or not
the planned Iowa Press programs featuring political
candidates will constitute a debate under Forbes v.
Arkansas Education Television Commission, [93 F.3d 497
(8th Cir. 1996) (Forbes II)], is a very close one.
The public has an interest in hearing the views of
all legally qualified candidates. But the record here is
that all candidates' views can adequately be presented on
Iowa Public Television programs without requiring the
requested appearances with other candidates on the
scheduled Iowa Press programs. Moreover, there is a very
strong public interest in allowing news broadcast
journalists to exercise editorial discretion.
Order at 1-2.
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would be interpreted by reasonable persons viewing Iowa Press to be
debates.
The district court also found that the Iowa Press programs were "bona
fide news interview programs." Mem. Op. at 3. The district court noted
that
defendant network has been airing weekly Iowa Press appearances
of public figures for over twenty years. The typical programs
are not debates but simply journalists' interviews of persons
in the news generally.
Id. at 5. The district court found that Movants had been excluded from the
joint appearances "on the basis of independent journalistic and editorial
judgments" by IPTV that the Movants were not newsworthy, id. at 4, and
specifically held that Movants had failed to prove that their appearance
on Iowa Press would be newsworthy. Id. The district court also held that
IPTV did not base its decision to include certain candidates in the joint
appearances based on the candidates' political affiliation, and that
Movants were not excluded from the joint appearances based on their
political affiliation or on the basis of their political views.
Based on these findings, the district court concluded that the Iowa
Press programs constituted a limited public forum, but that Movants'
exclusion from the programs did not violate the First Amendment. IPTV
served a compelling state interest, defined by IPTV's policies, by limiting
the joint appearances to newsworthy candidates. The district court further
held that the exclusion was narrowly tailored because, although not invited
to appear on Iowa Press, Movants did have access to other programs
presented by IPTV. The district court denied all relief, and Movants
appealed. During the pendency of the appeal, Movants brought this motion
before us.
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II.
We begin by noting that, while we are not unmindful of the time
constraints faced by the Movants, principles of judicial economy, equity,
and respect for the judgment of the district court do not favor granting
Movants their requested relief at this stage of the proceedings. Movants'
appeal of the district court's denial of injunctive relief is currently
pending before this Court, and it will require an analysis of much the same
issues as presented in this motion. Indeed, in this motion Movants request
substantially the same relief which they sought--and failed to obtain--in
the district court, and which they undoubtedly will seek on appeal. This
Court will therefore be required by Movants to expend our resources twice
in considering the same issues between the same parties in the same case--a
duplicative effort which is particularly undesirable in light of our ever-
expanding docket.
In addition to requiring this Court to expend additional resources,
motions such as this can be used to gain an unfair advantage over the other
party litigant. In considering Movants' motion for emergency injunctive
relief, we have before us to balance the Movants' arguments only a hastily
prepared response by IPTV, a smattering of the record, and virtually no
opportunity for reflection. By contrast, on appeal IPTV will have a full
opportunity to rebut Movants' arguments, and to support the district
court's judgment. Further, we will have full access to the record in this
matter, and sufficient time to carefully consider the legal arguments of
all parties. This assures not only fairness to all parties litigant, but
also that we will not intemperately--and incorrectly--reverse the carefully
wrought judgment of the district court.
Our analysis of Movants' request for injunctive relief is guided by
our decision in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109,
113 (8th Cir. 1981) (en banc), where we stated:
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Whether a preliminary injunction should issue involves
consideration of (1) the threat of irreparable harm to the
movant; (2) the state of the balance between this harm and the
injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed
on the merits; and (4) the public interest.
We address each of these issues in turn.
A.
The two remaining joint appearances scheduled on Iowa Press concern
the First and Fourth Congressional District races. Only Movants Cuddehe
and Badgett, the candidates for those races, would be directly affected by
the grant of the requested injunctive relief. We therefore direct our
inquiry into irreparable harm to these two Movants.
We agree with the district court that the access offered to these
Movants on other IPTV programs will be of significant value to the Movants,
and might well have a more favorable impact on voters than the earlier
airing of Iowa Press. See Order at 2. But see Trial Tr. at 73, reprinted
in Movants' App. at Ex. G (expert testimony of Professor Mack Shelley that
appearance in a debate is more valuable than a postdebate appearance). We
disagree, however, that these Movants have failed to show irreparable harm.
Movants in this motion argue that their First Amendment right to
express themselves in a limited public forum has been offended by their
exclusion from the joint appearances on Iowa Press. If they are correct
and their First Amendment rights have been violated, this constitutes an
irreparable harm. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1973)
(plurality opinion) ("The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.").
This element of the Dataphase analysis is therefore satisfied.
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B.
We agree with the district court, however, that the balance of harms
in this case weighs against issuing an injunction. Although a state actor,
IPTV is a media organization, which necessarily must make editorial
decisions regarding the content of its programming. Interference with that
editorial discretion constitutes a significant injury to the editorial
integrity of IPTV, which interferes with their primary mission of serving
the public. See
Mem. Op. at 7.
In addition, IPTV has represented that, if required to include other
candidates in the Iowa Press joint appearances, it will cancel the
scheduled joint appearances entirely "rather than impair its journalistic
integrity and its credibility with its viewers." Mem. in Opposition to
Emergency Mot. at 3. We note that this is precisely the step taken by the
Nebraska Education Television Network in August 1996, when it cancelled a
scheduled debate between certain senatorial candidates rather than include
uninvited candidates or face litigation. We find that the threat of
possible harm to IPTV is substantial if the requested injunction were to
issue, and is greater than the harms faced by Movants.
C.
We also do not believe that Movants have demonstrated a likelihood
of success on the merits. In this case, "success on the merits" means that
we would reverse the district court on appeal. We do not lightly assume
district court error, particularly where, as in the appeal pending before
this Court, the district court's judgment shall be reviewed for abuse of
discretion. See Pottgen v. Missouri State High Sch. Activities Ass'n, 40
F.3d 926, 929 (8th Cir. 1994).
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Accepting for the purposes of this motion that the joint appearances
are debates and that IPTV has opened Iowa Press as a limited public forum
to qualified congressional candidates, see Mem. Op. at 5-6, IPTV's
regulation of speaker access "survive[s] only if [it is] narrowly drawn to
achieve a compelling state interest." International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).
IPTV presented evidence, and the district court found, that IPTV
limited speaker access to the joint appearances on Iowa Press on the basis
of the newsworthiness of the candidates. The district court held that IPTV
had a compelling interest in presenting newsworthy programs, stating that:
It is profoundly important that the defendant network and its
new editors be allowed to exercise independent journalistic and
editorial judgments based on newsworthiness. If the defendant
network may not exercise editorial discretion in determining
the content of its programs, the network would be fundamentally
bland and of little value to the public it serves.
Mem. Op. at 7.
Movants argue that IPTV has no compelling interest in limiting
speaker access, and rely heavily on our decision in Forbes v. Arkansas
Educational Television Commission, 93 F.3d 497 (8th Cir. 1996) (Forbes II).
In Forbes II, we held that an independent candidate could not be excluded
from a debate broadcast on a state-operated public television station
because he was not a "viable" candidate. See id. at 504-05. Reasoning
that Arkansas law itself defined "viability" as being qualified as a
candidate, we determined that the independent candidate had been excluded
from the debate only because "in the opinion of the network, he could not
win." Id. at 504. Relying on Families Achieving Independence and Respect
v. Nebraska Department of Social Services, 91 F.3d 1076
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(8th Cir. 1996), a decision which has recently been vacated pending
rehearing by the Court en banc, the Forbes II Court stated that:
We have no doubt that the decision as to political viability is
exactly the kind of journalistic judgment routinely made by
newspeople. We also believe that the judgment in this case was
made in good faith. But a crucial fact here is that the people
making this judgment were not ordinary journalists: they were
employees of government. The First Amendment exists to protect
individuals, not government. The question of political
viability is, indeed, so subjective, so arguable, so
susceptible of variation in individual opinion, as to provide
no secure basis for the exercise of governmental power
consistent with the First Amendment.
93 F.3d at 505. Movants reason that, because this case also involves the
exclusion of a candidate based on a "subjective" determination of
newsworthiness, see Trial Tr. at 296 (testimony of Mike Newell, Producer
for Iowa Press), it must also be an improper exercise of governmental
authority. We disagree.
Forbes II cannot be read to mandate the inclusion of every candidate
on the ballot for any debate sponsored by a public television station. Nor
does Forbes II suggest that public television station administrators,
because they are government actors, have no discretion whatsoever in making
broadcast determinations. Rather, Forbes II held that there was no
compelling interest in excluding statutorily-defined viable candidates from
a debate based on the viability of the candidate. Unlike "viability,"
which is ultimately for the voters to decide, "newsworthiness" is
peculiarly a decision within the domain of journalists.
Relying on Regan v. Time, Inc., 468 U.S. 641 (1984), Movants assert
that "newsworthiness" is an inherently improper basis for
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determining access.5 Regan involved criminal statutes for photographing
obligations or securities of the United States, see id. at 643, and we
agree that the "newsworthiness" of a message could not be a proper basis
for determining whether a speaker should be criminally liable for speech.
In the instant case, however, we deal with a government agency which is
also a media organ. By its very nature and under controlling policies,
IPTV must be concerned with the newsworthiness of the issues and speakers
included in its programming. Pursuant to Iowa Code § 256.82(3), IPTV's
advisory committee on journalistic and editorial integrity is "governed by
the national principles of editorial integrity developed by the editorial
integrity project." Id. "Editorial integrity in public broadcasting
programming means the responsible application by professional practitioners
of a free and independent decision-making process which is ultimately
accountable to the needs and interests of all citizens." Statement of
Principle of Editorial Integrity in Public Broadcasting, the Editorial
Integrity Project, reprinted in Respondents' App. at Ex. 4 (Statement of
Principles). The Statement of Principles provides that:
5
The Regan Court stated:
A determination concerning the newsworthiness or
educational value of a photograph cannot help but be
based on the content of the photograph and the message it
delivers. Under [18 U.S.C. §§ 474, 504(1)], one
photographic reproduction will be allowed and another
disallowed solely because the Government determines that
the message being conveyed in the one is newsworthy or
educational while the message imparted by the other is
not. The permissibility of the photograph is therefore
often dependent solely on the nature of the message being
conveyed. Regulations which permit the Government to
discriminate on the basis of the content of the message
cannot be tolerated under the First Amendment.
468 U.S. at 648-49 (quotations and citation omitted).
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In order to assure that programs meet the standards of
editorial integrity the public has a right to expect, the
following five principles and guidelines establish a foundation
for trustee action. . . . The ultimate goal of the principles
and guidelines is to assist public broadcasting trustees in
fulfilling their vital role in this important public service.
Id. These five principles are: (I) We are Trustees of a Public Service;
(II) Our Service is Programming; (III) Credibility is the Currency of our
Programming; (IV) Many of our Responsibilities are Grounded in
Constitutional or Statutory Law; and (V) We Have a Fiduciary Responsibility
for Public Funds. Id. The guideline to Principle III, Credibility is the
Currency of our Programming, instructs that:
The process of developing programs to meet the audience's needs
must function under clear policies adopted and regularly
reviewed by the trustees. This process must be managed by the
professional staff according to generally accepted broadcasting
industry standards, so that the programming service is free
from pressure from political or financial supporters. The
station's chief executive officer is responsible for assuring
that the program decisions are based on editorial criteria,
such as fairness, objectivity, balance and community needs; not
on funding considerations.
Id. In adhering to these guidelines, IPTV has created a programming
policy, which provides that:
In the presentation of public affairs programming, Iowa Public
Television should maintain maximum objectivity and fairness.
Iowa Public Television should strive for a better informed
citizenry of the state of Iowa, through the presentation of
important and significant issues.
Resp't's App. at Ex. 3 (emphasis added).
In meeting these policies, IPTV has limited access to the Iowa Press
joint appearances to newsworthy candidates. Although a
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determination of newsworthiness is based on journalistic discretion, and
is therefore somewhat subjective, there are clearly objective elements of
newsworthiness. Daniel K. Miller, the Director of Programming and
Production for IPTV, testified at length in his deposition to the elements
which inform a professional editorial judgment that a candidate's
appearance is "newsworthy":
[N]ewsworthiness has a number of elements, I think. Is this
candidate or this campaign, is it active in the region that
it's running for? If it's a statewide campaign, for example,
is it active in all of Iowa's 99 counties or in a majority of
them? Does it have--my phrase, not a good one--an organization
of volunteers, campaign organization beyond the campaign staff?
If the candidate or campaign or party has had previous
exposures to elective offices, how have they done? If they
have done well, what is well? Are they growing? Is there
growth in their success at the polls? Have they had previous
exposure to elective office? Are they seeking the office
actually to be elected to it or do they say that they are
seeking it to bring ideas into the marketplace? How has their
fund-raising been? Is it a broad base? Do they have a lot?
Do they have little? Whatever. How are they treated by other
media organizations? Have their efforts generated news in
other media organizations or if there are debates, have they
been included in those debates by other news organizations?
What are we hearing? What are we hearing either from the
public or what are we hearing from the campaigns themselves?
Are people calling us and saying you know, "Such and such had
a crowd of 550 last night," or are they calling us and saying,
"Such and such had a crowd of five." The last part, are we
hearing anything? What are we hearing from the campaigns
themselves? Politics is an enterprise that relies on the
ability of its participants to sell themselves, to retail
themselves. What are we hearing along that line? Do we hear
a lot from the candidates themselves? Are they calling us?
Are they faxing us? Are we getting encouraged by their
supporters who happen to be people we know or people we don't
know to pay attention to their campaigns? Do we see early
indications of retail efforts in that regard in the media? Are
they buying newspaper or radio ads?
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Dep. at 22-24, reprinted in Movants' App. at Ex. C. Professor Barbara
Mack, an expert witness for IPTV, testified regarding journalistic
standards of newsworthiness:
When I teach freshmen journalists about what is meant by
newsworthiness, what makes someone newsworthy, you talk about
the--the quality that that person or that news event has.
Is that news event going to have an impact on the people
who read your newspaper or who watch your television station?
Is it going to change their lives? Does it have the potential
to change their lives? Is it something which is a public
conflict? Conflict is one of our classic new values. Impact
is a classic news value.
We talk about the news--the news value of locality. As
strange as it may seem, a bus accident that occurs in India
will get very little coverage in the Des Moines Register, but
a bus accident that occurs in downtown Des Moines at rush hour,
even though it may injure fewer people, will get more new
coverage. Why? Because it's local, and local news has
importance.
We talk about the value of human interest, and many of
the stories that most people think of as feature stories are
human interest stories. They appeal to the characteristics of
the human spirit.
So when a journalist is making a decision about what is
or is not news, there is always a very careful evaluation of
each of those factors.
Trial Tr. at 355-56.
As found by the district court, IPTV properly determined that none
of the Movants were newsworthy, see Mem. Op. at 4. The district court
found that:
Defendants properly took into account in determining
newsworthiness . . . their study of the feeble efforts of the
plaintiff candidates to raise funds or express efforts in their
campaigns to generate public support for their candidacies.
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Id. at 8-9.
We agree that IPTV has a compelling interest, in meeting its public
service goals, of limiting access to newsworthy candidates. We further
agree that its methods were narrowly suited to achieving this goal, and
left substantial access to other fora offered by IPTV. We therefore do not
believe that Movants have demonstrated a likelihood of success on the
merits.
D.
We agree with the district court that there is a public interest in
hearing all qualified candidates present their views. However, there is
also a public interest in having a debate between some candidates rather
than having no debate whatsoever. In addition, we believe that IPTV's
professional broadcasters are generally better aware of what constitutes
appropriate programming than a group of federal judges; it is clearly in
the public interest in having a state-operated public television free of
unnecessary interference by a federal court. On balance, therefore, we
believe that the public interest supports denying this injunction.
III.
For the reasons stated above, we deny the emergency motion for
injunctive relief.
BEAM, Circuit Judge, dissenting.
The court (and the district court as well) seeks to distinguish the
indistinguishable. Thus, I dissent.
The binding precedent at work in this case is found in Forbes v.
Arkansas Educ. Television Comm’n, 93 F.3d 497 (8th Cir. 1996).
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Forbes (as are the plaintiffs in this case) was a legally qualified
candidate for Congress from the Third District of Arkansas. Also, as here,
he was shut out of a debate between the Republican and Democratic
candidates for the Third District seat televised on Arkansas Educational
Television. The basis for the exclusion was that Forbes was not a “viable”
candidate.
Chief Judge Richard S. Arnold, for a unanimous panel, rejected, as
unconstitutional, this governmental action, saying:
We have no doubt that the decision as to political
viability is exactly the kind of journalistic judgment
routinely made by newspeople. We also believe that the
judgment in this case was made in good faith. But a crucial
fact here is that the people making this judgment were not
ordinary journalists: they were employees of government. The
First Amendment exists to protect individuals, not government.
The question of political viability is, indeed, so subjective,
so arguable, so susceptible of variation in individual opinion,
as to provide no secure basis for the exercise of governmental
power consistent with the First Amendment.
Id. at 505.
In my view, there can be no realistic argument advanced that a
subjective opinion by a government employee that a candidate is or is not
“newsworthy” is different from a subjective conclusion that he or she is
or is not “politically viable.” The inquiry involves two peas from the
same analytical pod. Forbes requires us to grant the emergency injunction
requested in this case.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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