dissenting:
The majority would reverse this case and remand it to the District Court for a determination as to whether or not the evidence presents a genuine issue of material fact as to whether or not .the exercise of their constitutional rights was a substantial or motivating factor in the dismissal of Schneider and Cosgrove.
The trial court granted a Summary Judgment in favor of the Defendants on this issue. The majority feels that this presents a genuine issue of a material fact and therefore should not have been handled by Summary Judgement.
I feel that this matter was correctly handled by the District Court and I would affirm this case.
The District Court in its opinion stated:
“Plaintiff’s primary claim in the case before the court is that defendants violated the First Amendment by attempting to censor the news stories broadcast by the community college radio station and by terminating plaintiffs. For pur*1546poses of resolving the instant motion, the court shall assume that plaintiffs were in actuality terminated because they broadcast stories regarding development of Hutchinson Island and local political campaigns contrary to the directions of the college president, Dr. Heise.”
“The court notes that a factual dispute does exist as to the reasons that plaintiffs were dismissed from their positions with the radio station of Indian River Community College. The factual dispute is not, however, “material.” The court has resolved “all reasonable doubts about the facts .,. in favor of the non-movant.” Thrasher v. State Farm Fire and Casualty Co., 734 F.2d 637, 639 (11th Cir.1984) (quoting Casey Enterprises v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981)). Even assuming that plaintiffs were dismissed for the reasons that they allege, defendants are “entitled to judgment as a matter of law.” Rule 56(a) of the Federal Rules of Civil Procedure.”
“The fundamental question presented to this court is whether in making the programming decision at issue and in terminating plaintiffs for ignoring the programming directives, defendants violated the First Amendment rights of the plaintiffs, BRIAN SCHNEIDER and TOM COSGROVE.”
This question was answered in the case of Muir v. Alabama Education Television Commission 688 F.2d 1033. I agree with Judge Johnson’s interpretation of the majority opinion. Though he wrote a dissent, he states therein on page 1054:
“The majority of this Court — now in the twilight of its long and honorable existence — has affirmed Muir REVERSED Barnstone in an opinion which grants state authorities unlimited discretion to regulate the content of public television within their control.
I would also refer to “In the Matter of Michael D. Bramble 58 FCC2d. 565 (1976)”.
While the appellants raise several questions, their primary claim as heretofore stated, is that their First Amendment rights were violated.
Of all other questions raised, I think Judge Roettger clearly addressed all of them in his opinion of April 30, 1987. I see no need to remand this case to the district Court. I think Judge Roettger’s opinion should be affirmed.
Therefore, I respectfully dissent.