Opposition Brief — Cruz v. Playboy Enterprises, Inc.

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Supreme Court of the United States

OCTOBER TERM, 1990

HECTOR RIVERA CRUZ, Secretary of Justice

of the Commonwealth of Puerto Rico,

Petitioner,

PLAYBOY ENTERPRISES, INC., et al.,

a Respondents.

_ On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF IN OPPOSITION

MARIA EMILIA PICO DAVID W. OGDEN *

REXACH & PICO DONALD B. VERRILLI, JR.

802 Fernandez Juncos JENNER & BLOCK

Miramar, Santurce 21 Dupont Circle, N.W.

Puerto Rico 00918 Washington, D.C. 20036

(809) 723-8520 (202) 223-4400

Counsel for Respondents

October 16, 1990 * Counsel of Record

RRA aE SS SS IE,

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

STATEMENT OF THE CASE ........000.000.220....eeeeeeeee

REASONS FOR DENYING THE WRIT .........00...........

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TABLE OF AUTHORITIES

CASES Page

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

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Golden State Transit Corp. v. City of Los Angeles,

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Maine v. Thiboutot, 448 U.S. 1 (1980) .......00......... 6

Pennhurst State School v. Halderman, 451 U.S. 1

5 ARREARS a eve ears ad LO 7,8

Smith v. Robinson, 468 U.S. 992 (1984) —........ 7

Steffel v. Thompson, 415 U.S. 452 (1974) -.......... ll

Wright v. Roanoke Redev. & Housing Auth., 479

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Younger v. Harris, 401 U.S. 87 (1971) -.................. 11

FEDERAL STATUTES

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47 U.S.C. § 582 (b) ............ \ anscscailbaneicihe tehsil 3

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LEGISLATIVE HISTORY

H.R. Rep. No. 98-934, 98th Cong., 2d Sess. (1984) .. 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-491

HECTOR RIVERA CRUZ, Secretary of Justice

of the Commonwealth of Puerto Rico,

Petitioner,

PLAYBOY ENTERPRISES, INC., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF IN OPPOSITION

The Petition for Certiorari in this case presents a nar-

row question involving the straightforward application

of well-settled principles of federal law. Accordingly, no

reason exists for review by this Court.

STATEMENT OF THE CASE

Respondents—a national cable television programmer

(“Playboy”) and the association representing all cable

television systems in Puerto Rico (“Cable Association” )

—brought this case pursuant to 42 U.S.C. § 1983 (“Sec-

tion 1983”) to halt a concerted censorship campaign by

petitioner and other officials of the Commonwealth of

Puerto Rico, a campaign designed to intimidate cable sys-

tems throughout the island into ceasing carriage of The

Playboy Channel. During the Spring of 1987, the office

of the Secretary of Justice made a series of blatantly il-

legal and unconstitutional threats to prosecute cable op-

erators who carried The Playboy Channel. This cam-

paign of intimidation so clearly violated the First

Amendment, see Bantam Books, Inc. v. Sullivan, 372

U.S. 58 (1963), that, shortly after respondents filed suit,

the Commonwealth consented to entry of a permanent

injunction against such conduct and against any future

prosecution based upon programming previously carried

on The Playboy Channel. The validity of that relief is

not at issue in this petition.

1 The District Court had previously entered a comprehensive Tem-

porary Restraining Order. In the consented-to permanent injunc-

tion, petitioners were enjoined from:

(a) imposing any administrative sanctions against cable opera-

tor members of the Cable Association based upon any trans-

missions of The Playboy Channel;

(b) threatening to prosecute members of the Cable Associa-

tion for any programming carried on The Playboy Channel, or

taking any adverse actions against the members in reprisal for

the exercise of their First Amendment rights;

(ec) prosecuting or sanctioning in any way members of the

Cable Association or any other person or entity for past pro-

gramming on The Playboy Channel:

(d) interfering with any programming carried on The Playboy

Channel by intimidating or putting coercive pressure on mem-

bers of the Cable Association.

Playboy Enterprises, Inc. v. Public Service Commission of Puerto

Rico, 906 F.2d 25, 28 (1st Cir. 1990); App. 4a-5a.

Petitioner is fiatly wrong in asserting that respondents’ First

Amendment claims somehow lacked force or were voluntarily aban-

doned. To the contrary, respondents’ First Amendment rights to

injunctive relief are no longer at issue because they have been

completely vindicated by the entry of the permanent injunction.

Petitioner’s willingness to consent to the entry of this sweeping

Respondents also sought permanent relief from prose-

cution, based upon future programming, for members of

the Cable Association carrying The Playboy Channel pur-

suant to the mandatory access provisions of the Cable

Communications Policy Act of 1984 (‘‘the Cable Act”).

Section 532 of the Cable Act imposes mandatory access

obligations upon cable operators whose systems have at

least 36 “activated channels.”* 47 U.S.C. § 582(b) &

(b) (5) (A). Such operators must make available a stat-

utorily-prescribed percentage of their channel capacity

for “commercial use” by “unaffiliated” programmers. Id.

§ 5382(b) (1). When an unaffiliated programmer requests

access under Section 532, a cable operator is statutorily

required to grant that request unless the operator has

already fulfilled its access requirements. Jd. § 532(c) (1).

Once an unaffiliated programmer obtains access, the cable

operator is prohibited by federal law from exercising any

editorial control over the programming transmitted on

the channel. Jd. § 532(c) (2).

The provisions of Section 558 of the Cable Act are

essential to the success and fairness of the commercial

access scheme established in Section 532. Section 558

confers immunity on cable operators for programming

carried on Section 532 commercial access channels:

cable operators shall not incure any [civil or crimi-

nal] liability {for libel, slander, obscenity, incitement,

relief, notwithstanding his articulated desire to preserve the

Commonwealth’s enforcement authority, testifies to the strength of

respondents’ First Amendment claims.

2In this way, section 532 directly advances one of the Cable Act’s

core purposes: to “assure that cable communications provide and

are encouraged to provide the widest possible diversity of informa-

tion sources and services to the public.” 47 U.S.C. §521(4) (state

ment of purposes).

3 The Cable Act defines “commercial use” as the “provision of video

programming, whether or not for profit,” 47 U.S.C. § 532(b) (5) (B),

and defines “unaffiliated” as meaning the absence of common owner-

ship or control. Jd. § 522(1).

invasions or privacy, false or misleading advertising,

or other similar laws] for any program carried on

any channel designated for public, educational, ,ov-

ernmental use or on any other channel obtained under

Section 532 of this title or under similar arrange-

ments.

47 U.S.C. § 558. Basie fairness dictates the need for

such a provision to insulate cable operators from liabil-

ity for programming over which they have no editorial

control. See H.R. Rep. No. 98-934, 98th Cong., 2d Sess.

(1984). Section 558 immunity is equally important to

achieving the additional statutory goal of encouraging

private consensual arrangements for commercial access,

and obviating the need for litigation between program-

mers seeking access and operators wishing to protect

themselves from an uncontrollable risk of criminal or

civil liability.*

In September 1987, respondents moved for summary

judgment permanently enjoining prosecution of Tele-

ponce, a member of respondent Cable Association, for

programming carried on The Playboy Channel pursuant

to Section 532. Undisputed evidence established that re-

spondent Playboy had maintained access to the Teleponce

cable system only by invoking the mandatory commer-

cial access provisions of Section 532.° Undisputed evi-

4 One reason a cable operator will not wish to disseminate a par-

ticular viewpoint is government hostility to that viewpoint, hostility

that could easily translate into adverse regulatory action. Moreover,

even without advance government hostility, operators would be prop-

erly hesitant to cede all editorial control over programming if they

could be held criminally liable for its contents. Accordingly, without

immunity, cable operators could be expected to resist dogyedly all

requests for Section 532 access from unaffiliated programmers,

necessitating recourse to the courts to enforce programmers’ access

rights. The costs and delays imposed by such suits would deter use

of Section 532 and would therefore limit the programming diversity

sought by Congress.

5 Teleponce had publicly expressed its intention to discontinue

The Playboy Channel in the face of government pressure. See Affi-

davit of Hector Gonzalez, at { 12, reprinted in Supplemental Ap-

dence also demonstrated that Teleponce was obligated

under the terms of Section 532 to provide the requested

access, and had done so. Section 558 of the Cable Act

therefore barred prosecution of Teleponce for transmit-

ting The Playboy Channel.* The Commonwealth of course

remained free to prosecute Playboy for any future pro-

gramming deemed obscene, and Playboy had even taken

the step of voluntarily submitting to personnel jurisdic-

tion in the Puerto Rico courts to facilitate prosecution.

No such prosecution has been filed.

The district court granted vespondents’ motion for

summary judgment and permanently enjoined prosecu-

tions of Teleponce for programming transmitted on The

Playboy Channel. The court found, on the basis of un-

disputed material facts, that Teleponce was obligated to

make channel capacity available to unaffiliated commer-

cial programmers pursuant to Section 532, that Playboy

had specifically requested access to such capacity pursu-

ant to Section 532, and that Teleponce granted such ac-

cess. 698 F. Supp. at 416; App. 64a-65a. Accordingly,

the court held, Section 558 expressly prohibited prosecu-

tion of Teleponce for carriage of the Playboy Channel.

Id. The Court of Appeals affirmed that ruling in all

respects, and petitioner does not challenge it before this

Court.

The only argument raised in the Petition for Cer-

tiorari is the narrow claim that Section 1983 is unavail-

able to cable operators such as Teleponce wishing to

pendix to the Court of Appeals proceedings (“SA”) at 70. An

application for mandatory access pursuant to Section 532 was the

only means available to respondent Playhcy Programming Distribu-

tion Company (“PPDC’’) to keep the Playboy Channel on the

Teleponce system. Jd. See also Affidavit of Michael Fleming, at

"73,4; SA 125.

® As the district court noted, petitioners stipulated that respond-

ent Teleponce had a reasonable fear of prosecution for carrying the

Playboy Channel, 698 F. Supp. 401, 405 (D.P.R. 1988); App. 41a,

thus eliminating any question as to the ripeness of the action.

shield themselves from an unlawful threatened prosecu-

tion based on programming carried on a commercial ac-

cess channel.

REASONS FOR DENYING THE WRiT

No reason exists for granting certiorari in this case.

Petitioner has pointed to no decision in conflict with

the opinion under review, and none exists. Nor does

this case present any important or unresolved ques-

tion of federal law. The Petition for Certiorari raises

no issue of any kind respecting the proper interpretation

of the Cable Act. And petitioner concedes that the Court

of Appeals applied the correct legal standard to deter-

mine whether respondents could bring this action pur-

suant to Section 1983.7 In short, the case raises no issues

of general importance.

Petitioner contends review is warranted for two rea-

sons: (i) the Court of Appeals reached an incorrect re-

sult; and (ii) a Section 1983 cause of action to vindicate

rights created by Section 558 of the Cable Act infringes

Puerto Rico’s authority to enforce its laws. As will be

demonstrated, however, the decision of the Court of Ap-

peals was plainly correct on the merits, and recognizing

a Section 1983 cause of action to enforce rights created

by Section 558 imposes no limitation on the enforcement

authority of Puerto Rico beyond that imposed by the

Cable Act itself.

1. Section 1983 provides a cause of action to vindi-

cate rights created by federal statute as well as those

created by the Constitution. Maine v. Thiboutot, 448

U.S. 1, 4 (1980) (“the phrase ‘and laws’, as used in

§ 1983, means what it says’). Section 1983 is generally

available to vindicate statutory rights unless one of two

7 The Petition for Certiorari correctly contends that the standards

set forth in Golden State Transit Corp. v. City of Los Angeles, 110

S. Ct. 444 (1989), control this case. See Petition at 7-8. The Court

of Appeals applied exactly the test advocated by petitioner. 906

F.2d at 32-33; 13a-l6a.

conditions is met. First, there is no enforceable “right,

privilege, or immunity” under Section 1983 if the statute

at issue “does no more than express a congressional pref-

erence for certain kinds of treatment,” or if the federal

interest is so “vague and amorphous” that it is “be-

yond the competence of the judiciary to enforce.” Golden

State Transit Corp. v. City of Los Angeles, 110 S. Ct.

444, 448 (1989); see also Pennhurst State School v.

Halderman, 451 U.S. 1, 19 (1981); Wright v. Roanoke

Redev. & Housing Auth., 479 U.S. 418, 431-432 (1987).

Second, “even when the plaintiff has asserted a federal

right, the defendant may show that Congress ‘specifically

foreclosed a remedy under § 1983’ by providing a ‘com-

prehensive enforcement mechanism’ ” for protecting that

right. Golden State Transit Corp., 110 S. Ct. at 448

(quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9, 1003

(1984) ).

The Court of Appeals applied precisely this two-part

test to determine whether a Section 1983 cause of action

was available in this case. 906 F.2d at 32-83; App. 13a-

16a. Petitioner does not contend that this test should be

reexamined, or that the Court of Appeals departed from

the test in some fundamental way meriting correction

by this Court. Petitioner does not even challenge the

Court of Appeals’ conclusion that Section 558 of the

Cable Act creates an enforceable “right, privilege or im-

munity.” See Petition at 9-13.° Petitioner argues only

8 The Court of Appeals’ ruling on this point is not reasonably

open to challenge. As the court held:

Section 558 uses unequivocal, mandatory language: “cable

operators shall not incur any liability for any program” car-

ried on any public, educational, governmental or leased access

channel. This immunity can be protected effectively by enjvin-

ing prosecution.

906 F.2d at 32; App. 13a-l4a. The express prohibition set forth in

Section 558 is a far cry from the type of nonbinding indication of

congressional preference that has been found not to create rights

enforceable through Section 1983. See Pennhurst State School v.

Halderman, 451 U.S. 1, 19 (1981).

that the Court of Appeals misapplied the second part of

the test. Id. at 9-18.

Even if review were generally warranted to correct

a possible partial misapplication of settled federal law—

and it is not °—review is wholly unnecessary in this case

because the Court of Appeals’ ruling is plainly correct.

To preclude a Section 1983 remedy under the second part

of the Golden State Transit Corp. analysis, petitioner

must “demonstrate|] by express provision or other spe-

cific evidence from the statute itself that Congress in-

tended to foreclose such private enforcement.” Wright,

479 U.S. at 423. Petitioner cannot meet that burden.

Nowhere in the text or legislative history of the Cable

Act does Congress express the specific intent to foreclose

a Section 1983 remedy for the rights and immunities

created by Section 558. To support an inference of such

intent, petitioner claims that the Cable Act creates an

“elaborate and multi-tiered enforcement and remedial

scheme.” Petition at 9. But, as the Court of Appeals

correctly observed when faced with the same argument

below, “[t]he sum of these remedial provisions hardly

creates a ‘comprehensive remedial scheme’ leaving ‘no

room for additional private remedies under § 1983.’ ”

906 F.2d at 33; App. 15a (quoting Wright, 479 U.S. at

423). In particular, none of the remedial and enforce-

ment provisions to which petitioner points even purports

to provide a means for enforcing Section 558 against

anyone, much less against state actors bent on violating

its unambiguous terms. At a minimum, as the Court of

Appeals held, “before one can conclude that Congress

meant to displace a § 1983 suit with a particular reme-

dial scheme, that scheme must at least serve to protect

the federal right created in the statute and at issue in

the case.” Id. See Smith v. Robinson, 468 U.S. at 1011-

12 (Section 1983 remedy precluded only where it would

% See infra, point 3.

“render superfluous most of the detailed procedural pro-

tections outlined in the statute”).

Denial of a Section 1983 cause of action to safeguard

the rights and immunities created in Section 558 would,

in contrast, directly thwart the express purposes of Sec-

tion 558, Section 532, and the Cable Act as a whole.

Section 558 is obviously intended to ensure that cable

operators are not unfairly subjected to the criminal proc-

ess for cable programming cuver which they have no edi-

torial control. The mere fact of an obscenity indictment,

and the attendant publicity, would severely damage the

reputation and good will of a cable operator, whether or

not the operator is eventually exonerated. A cable op-

erator who must await actual criminal prosecution to

assert a clear entitlement to immunity under Section 558

would in all likelihood suffer public opprobrium and eco-

nomic harm as a result of the delay.

Moreover, as the facts of this case amply illustrate,

denial of a Section 1983 remedy would undermine the

Cable Act’s core purpose of promoting a diversity of

cable programming sources. A cable operator unable to

vindicate Section 558 immunity in an anticipatory Sec-

tion 1983 action would be especially vulnerable to govern-

ment pressures like those exerted against Teleponce in

the present case. Rather than risk the opprobrium of

an obscenity indictment, a cable operator will in all like-

lihood refuse to carry programming on a Section 532

channel.’”

2. Petitioner also appears to contend that permitting

a Section 1983 cause of action to vindicate rights cre-

ated by Section 558 of the Cable Act would impermissi-

1 Under threat of government prosecution, several cable operators

in Puerto Rico simply discontinued carriage of The Playboy Chan-

nel to avoid the adverse personal and economic impact of indictment.

Teleponce, notwithstanding its § 532 obligations, had made clear that

absent injunctive relief under § 1982, it too, would drop The Playboy

bly impinge on the Commonwealth’s legitimate enforce-

ment authority. This claim cannot withstand even cur-

sory scrutiny.

Petitioner’s complaint is ultimately not with Section

1983, but with the Cable Act itself. The Petition for

Certiorari does not dispute that The Playboy Channel

was carried on the Teleponce system in Puerto Rico as a

commercial access channel pursuant to the rights and

obligations established in Section 532 of the Cable Act.

Federal law requires Teleponce to carry the channel, 47

U.S.C. § 532(b) (1), and forbids Teleponce from exercis-

ing any editorial control over the channel’s contents. Id.

§ 532(c) (2). Section 558 thus unequivocally bars any

prosecution of Teleponce for the contents of The Playboy

Channel on the Teleponce system. Jd. § 558. Accord-

ingly, recognizing a Section 1983 cause of action places

no greater restriction on the Commonwealth’s legitimate

enforcement authority than does Section 558 of the Cable

Act standing alone. The permanent injunction at issue

thus does not bar legitimate prosecution; it bars only

prosecution all parties now recognize as illegitimate.

Furthermore, there is no force to petitioner’s assertion

that a Section 1983 cause of action impairs the Com-

monwealth’s ability to investigate and challenge the bona

fides of Section 532 arrangements. Nothing in the Court

of Appeals’ ruling prevents petitioner from challenging

the authenticity of a Section 532 arrangement in the

context of a Section 1983 action by a cable operator

seeking vindication of Section 558 immunity. Indeed,

that is precisely what happened here."’ Petitioner’s ar-

gument boils down to a preference for adjudicating these

questions in Commonwealth rather than federal courts.

But that “is hardly a reason to bar an action under

11 The district court concluded, on the basis of undisputed facts,

that a legitimate Section 532 relationship existed between Playboy

and Teleponce, and the Court of Appeals affirmed that ruling.

Petitioner does not dispute the ruling in the Petition for Certiorari.

ey ee

§ 1983, which was adopted to provide a federal remedy

for the enforcement of federal rights.” Wright, 479 U.S.

at 429."

Finally, the Commonwealth’s legitimate enforcement

authority is entirely unimpaired. As noted, the Com-

monwealth remains free to prosecute the cable program-

mer for programming transmitted over channels desig-

nated pursuant to Section 532. In this case, for example,

the Commonwealth could have prosecuted Playboy if the

Secretary of Justice genuinely believed the Playboy

Channel violated Puerto Rico’s obscenity laws.’* Nor does

the ruling under review create any obstacle to prosecu-

tion of cable operators for programming carried on chan-

nels other than those designated to fulfill obligations im-

posed by Section 532 of the Cable Act. Far from thwart-

ing the Commonwealth’s legitimate enforcement inter-

ests, the Cable Act carefully accommodated those inter-

ests while seeking to increase programming diversity

through commercial access requirements.

What petitioner really seeks to preserve is thus not

the Commonwealth’s legitimate authority to enforce ob-

scenity laws and verify the bona fides of Section 532

arrangements; he seeks to preserve the ability to

12 The principles of Younger v. Harris, 401 U.S. 37 (1971), and

its progeny fully protect the legitimate interests of the Common-

wealth in this respect. If the Commonwealth has probable cause to

believe that obscene programming is being transmitted and that a

cable operator is seeking to avoid transmission by means -of a

“sham” Section 522 arrangement, and brings a criminal action in

the local courts on that basis, Younger would preclude resort to

Section 1983 to enjoin the ongoing prosecution. It has long been

settled, however, that Section 1983 may be invoked to enjoin state

proceedings that have not yet commenced. Steffel v. Thompson,

415 U.S. 452 (1974).

13 Indeed, as noted, Playboy consented to Puerto Rico’s jurisdic-

tion over it for such purposes. The suggestion in the Petition that

Puerto Rico will lack the ability to enforce its laws because pro-

gramming typically arrives via satellite from distant locations, see

Petition at 17, thus creates a seriously misleading impression.

threaten local obscenity prosecution barred by the Cable

Act, in the hope that the obloquy and expense associated

with such prosecution will force cable operators to for-

sake their Cable Act obligations and bend to the Com-

monwealth’s censorial aims. The Commonwealth’s near

success in forcing Teleponce to drop The Playboy Chan-

nel demonstrates the need for a Section 1983 cause of

action.

3. There are no other reasons for plenary review of

the First Circuit’s straightforward decision. In the

six years since passage of the Cable Act, no other

case with a remotely similar fact pattern has reached

the courts—indeed, no other decision applying or con-

struing the commercial access provisions of § 532 or the

immunity provisions of § 558, separately or together,

has been reported or has reached the courts, so far as

respondents are aware. Until at least one other action

raising similar issues reaches the courts, there is no rea-

son whatsoever to suppose that petitioner has raised a

significant question of federal law.

CONCLUSION

For all the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,