A federal judge in Newark ruled Wednesday that the host of a public-access cable program skewering politicians can proceed with his First Amendment suit against Wayne Township, N.J., and William Paterson University, though he cannot seek monetary damages.
U.S. District Judge Kevin McNulty of the District of New Jersey dismissed plaintiff William Brennan’s claims for compensatory, punitive and exemplary damages against Wayne, finding that the Cable Television Consumer Protection and Competition Act of 1992 precludes such claims against government entities arising from the regulation of cable television service.
But McNulty denied the defendants’ motions to dismiss counts for injunctive and declaratory relief in the suit, which claims that Brennan’s program was not allowed to air because its content was found to violate the cable channel’s rules of conduct.
McNulty did not rule on whether Brennan could recover attorney fees, finding the law on that issue unsettled, and said he would revisit the issue if Brennan prevails.
The suit concerns Brennan’s program, “The New Jersey Civil Circus,” which runs on a public access channel owned by Wayne Township and operated by William Paterson University. His suit says William Paterson pulled his show off the air over violations of content-based rules of conduct.
Brennan claims in the suit he was told he violated William Paterson’s rules of conduct by giving an individual’s home phone number over the air and because he had used the word “tit.” But that word was used in a reference to politicians obtaining government benefits—the “public tit.”
And even when he complied with those rules, his show was unlawfully barred from airing when he became a candidate for the General Assembly, based on a Wayne regulation, the suit says.
McNulty denied the defendants’ motion to dismiss claims that the defendants’ regulation of cable television violated the First Amendment, are content-based and violate the New Jersey Constitution and New Jersey Civil Rights Act. He said the regulations “are plausibly alleged to open the door to viewpoint regulation and to grant WPU the right to reject or edit content without any objective criteria.”
In addition, McNulty denied the defendants’ motion to dismiss a count claiming that their regulations are unconstitutionally vague, not content-neutral and constitute viewpoint discrimination. He said the plaintiff “has set forth a plausible claim that defendants’ regulations impermissibly permit regulation of speech without adequate standards.”
McNulty also issued an administrative termination of a motion for summary judgment by Brennan, declaring it premature as the case is still in the discovery phase.
In addition to the township and the university, the suit names two William Paterson employees, Brian Gorski and Sandra Miller, as defendants.
Miller, the director of instruction and research technology at William Paterson, informed Brennan in May 2011 that, under a Wayne ordinance, he could not continue to appear in or produce his program in light of his candidacy. Brennan filed his suit in October 2011. Ten days after the suit was filed, Brennan was allowed to air his program but was told to adhere to William Paterson’s guidelines, according to court documents.
His suit says the guidelines are vague, particularly in their use of a “good broadcasting practices and taste” criteria, and therefore give university employees “unbridled discretion to reject proposed programming.”
The lawyer for Brennan, Brick, N.J.-based solo Donald Burke, said he was “grateful that the court recognized the important issues at stake.” Burke said Brennan has put his program on hiatus because of the dispute but hopes to resume production.
Wayne’s attorney, Joseph Morris of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, N.J., and Paul Loriquet, a spokesman for the Attorney General’s office, which represents William Paterson, declined to comment.
Contact the reporter at firstname.lastname@example.org.