# Opposition Brief — Cruz v. Playboy Enterprises, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 959

## Text

Supreme Court of the United States

OCTOBER TERM, 1990

HECTOR RIVERA CRUZ, Secretary of Justice
of the Commonwealth of Puerto Rico,
Petitioner,
v.

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

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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
SS. FUE ME ga iiccnevoncmeesicieswentionrstind aoe 7,8, 11
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,
v.

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” )

2

—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

3

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).

4
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-

5

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.

6

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.

7

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).

8

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.

9

“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
Channel. Gonzalez Aff., © 12, SA 71.

10

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

11

§ 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.

12

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,

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2856%3A2. Public record. Not legal advice.