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A decision handed down recently regarding First Amendment rights in the electronic media is a “pretty important victory” for the 1st U.S. Circuit Court of Appeals, according to attorneys for the American Civil Liberties Union of Massachusetts. In a 42-page decision issued Feb. 28, granting a plaintiffs’ motion for a preliminary injunction, Judge Michael Ponsor, of the U.S. District Court for the District of Massachusetts, ruled that a public access channel, based out of Orange, was a state actor for purposes of the 14th and First Amendments. Ponsor’s decision marks the first time the 1st Circuit has addressed the issue head-on, recognizing that nonprofessionals, using local cable facilities, are entitled to the same First Amendment protection as journalists and producers employed by large media outlets. “Given the fact that the Supreme Court has not ruled this is a public forum, this is an important decision,” said Harris Freeman, a cooperating ACLUM attorney and a professor at Western New England College School of Law. “There were some tough legal hurdles the court had to jump through in order to grant relief in this case.” In the ruling, Patricia Demarest and Vicki Dunn v. Athol/Orange Community Television, Inc., Ponsor ruled that the suspension of Athol, Mass., resident Patricia Demarest by the Athol/Orange public access channel [AOTV], following the broadcast of a show entitled ‘ThinkTank2000,’ violated the First Amendment. Demarest was suspended after running a segment that included a heated interview with a town official of Athol who had allegedly received preferential treatment from the town. Both Demarest and Vicki Dunn were the producers of “ThinkTank 2000,” a show broadcasting issues of local concern, including several shows focused on the behavior of local officials in Athol. The women used equipment from AOTV, a municipally authorized and operated public, educational and governmental access (PEG) channel, to produce and broadcast the show. Following Demarest’s suspension, the station revised its rules and regulations governing the use of the station, making it more difficult for producers such as Demarest to air views which the station thought controversial. The new rules adopted by the station prohibited any broadcast portraying a person who had not given their consent to be interviewed, effectively preventing critical coverage of elected officials. The new rules also sought to ban the broadcast of “criminal acts,” and required producers to pay the station’s legal expenses if it challenged the rules and lost. Ponsor did, however, deny a portion of the injunction, requiring producers to notify AOTV when a broadcast contains material that is “potentially offensive.” Noting that public access channels are the “video equivalent of the speaker’s soap box or the electronic parallel to the printed leaflet,” the court held that the rules impermissibly sought to regulate the content of broadcast news reports. “While acknowledging the station’s interest in protecting individual privacy, the court found that a local cable access station could not suppress freedom of expression by a rule which in effect gives the subject of a news report a veto power over its broadcast,” said William Newman, of Northampton, Mass.-based Lesser, Newman, Souweine & Nasser. Both Newman, also director of the Western Regional Office of the ACLUM, and Freeman represented the plaintiffs in the case. Peter Epstein of Boston represented the defendants. Ponsor wrote in his ruling that the “state actor” issue “is more difficult than may appear on the surface” in that no federal decision could be identified that “has positively found state action in a PEG case such as this one.” Ponsor said a decision in the Southern District of New York, Glendora v. Marshall, rejected a PEG programmer’s challenge on the ground that the cable provider was not a state actor. In this case, the plaintiffs argued that the Glendora case was easily distinguishable, in that the subject of the state action inquiry in Glendora was the regulated cable operator, rather that the public access channel itself. Ponsor added that the Glendora court did not reach the question of whether a public access channel may be a state actor, but cited several federal cases that have treated a PEG channel as a state actor without “explicitly addressing the issue.” “The most persuasive authority suggests that AOTV is a state actor,” Ponsor wrote. “The Supreme Court’s [ Lebron v. National Railroad Passenger Corp.] is perhaps the most compelling guidepost in this misty area.” In Lebron, the Court held that when “the government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Ponsor said all of the facts under Lebron had been met in the current case in that the Town of Athol created AOTV, through its license agreement with Time-Warner Cable. Athol demanded the creation of AOTV as a condition to Time-Warner’s license renewal, with Time-Warner paying the Athol Board of Selectman $15,000, followed by payments of $120,000 and $30,000 so that the board could form, organize and maintain AOTV and its facilities. Secondly, Athol created AOTV to further public objectives, Ponsor added, noting the station’s licensing agreement states that AOTV may be used by the public and that any residents of institution based in the town shall have the right to place locally produced programming on the Access Channel. Third, Athol retained authority through the Board of Selectman to appoint all of the members of the “Access Group.” “These factors make it highly probable, at least on the facts revealed so far, that AOTV, will be found to be a state actor for purposes of the First and Fourteenth Amendments,” Ponsor wrote.

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