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March 30, 1994


The opinion of the court was delivered by: BARBARA A. CAULFIELD


 Defendant Television Signal Corporation ("Viacom") is the monopoly provider of cable television services to approximately 161,000 households in San Francisco. Marx Decl., P 2. The 1988 amendment of the franchise agreement between Viacom and the City of San Francisco provided that Viacom "shall continue to provide an opportunity for public expression by the continuation of . . . public access on Channel 25." Witteman Decl., Exh. 1 at p. 5, § 2(a)(4). Viacom also is required, by federal statute, to provide a specified amount of leased access to its cable-casting system. See 47 U.S.C. § 532(b)(1). *fn1"

 Plaintiffs produce public and leased access programs for broadcast on Viacom's system. Plaintiffs Locke, Austin, Inouye, and Kleman are producers of public access programming ("public access plaintiffs"). Locke and Austin produce a public access show called "Wax Lips." Kleman and Inouye produce a public access program called "Museo Contempo." Plaintiffs Altmann and Freeman ("leased access plaintiffs") are producers of a leased access program entitled "Erotica SF."

 Public access plaintiffs allege that Viacom interrupted the transmission of their programs due to the sexual content of the programs. At the time, Viacom had issued a written policy stating that Viacom would "discourage obscene and indecent programming to the degree permitted by law" and called for the immediate termination of any program containing genital nudity, "the depiction of explicit sex," or "any simulation of explicit sex or genitalia." Freeman Decl., Exh. 2.

 Recently, an episode of "Museo Contempo" was interrupted in the middle of its broadcast. Plaintiffs describe that episode as "a filmic meditation of relationships, sexual roles and politics, [consisting] in largest part of interviews with adults living in [San Francisco]." Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction ("Plaintiffs' Memo."), p. 4. Plaintiffs allege that the show was cut off because of a brief scene in which the abstract "outline of a couple enmeshed in a sexual embrace could be seen." Ibid. Viacom claims that the interruption was due to a technical problem and that Viacom acknowledged the error and re-broadcast the show in its entirety. Defendant's Opposition to Motion for Preliminary Injunction ("Opposition Brief"), pp. 6-7.

 Similarly, plaintiffs Locke and Austin allege that a Viacom "playback technician" terminated an episode of their show "Wax Lips" midway through the broadcast. Plaintiffs claim that the show was interrupted after a "short stylized scene in which a non-erect penis was visible in a non-sexual context." Plaintiffs' Memo., p. 5. Plaintiffs were allegedly told that the show was cut because Viacom was "afraid of what was going to happen next." Locke Decl., P 4.

 Leased access plaintiffs have similar complaints of censorship by Viacom. In August 1993, leased access plaintiffs entered into a series of form agreements with Viacom to regularly broadcast leased access plaintiffs' show "Erotica SF." Plaintiffs admit that their show contains adult themes and sex-related subject matter, but contend that many segments of the public have lauded "Erotica SF" as "a well-produced and capable dissemination of sex education, opinion, and points of view not often heard on commercial television." Plaintiffs' Memo., p. 7. The first three episodes of "Erotica SF" were transmitted by cable without incident. The fourth episode was transmitted on November 17, 1993. On or about November 19, Viacom allegedly informed plaintiffs that the fourth episode contained indecent material in violation of the standard contract and all scheduled future telecasts of "Erotica SF" were therefore cancelled. Freeman Decl., Exh. 2. Viacom describes the fourth episode of "Erotica SF" as "hardcore pornography" containing "indecent" (and possibly "obscene") scenes depicting nudity and explicit sex acts. Opposition Brief, pp. 3-4.

 On January 7, 1994, plaintiffs filed this suit for injunctive and declaratory relief alleging that Viacom's conduct violated the First Amendment of the United States Constitution. Plaintiffs also seek damages and other relief pursuant to 42 U.S.C. § 1983 and various pendent state claims. Concurrent with the filing of this complaint, plaintiffs moved the court for a temporary restraining order forcing Viacom to continue to broadcast plaintiffs' programs. The court denied the TRO because Viacom had a right to ensure that obscene materials were not disseminated on its system and plaintiffs had failed to "assure" or "certify" that their works were not obscene. Witteman Decl., Exh. 5, Transcript of TRO Hearing dated January 10, 1994, pp. 30-31. Provisional relief was denied on this ground alone. The court did not address the constitutionality of Viacom's conduct in allegedly censoring indecent speech in addition to obscene speech. Id. at 33.

 After plaintiffs filed this suit, Viacom implemented a new policy regarding public and leased access broadcasts of obscene and indecent speech. Under this new policy, a producer must "certify" that the material to be telecast "is not obscene programming" and "is not indecent programming; namely, it does not describe or depict sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards" before Viacom will broadcast the show. Marx Decl., Exhs. B and C. If the producer refuses to certify that the programming is not "indecent," Viacom will automatically assume that the program "does in fact contain indecent material or that the programmer desires to retain editorial discretion to include indecent material." Ibid.

 Viacom plans to segregate "indecent programming" and broadcast it on one or more scrambled channels. Viacom will only unscramble the channels for a particular adult customer with the written consent of that customer before broadcast. Ibid. Viacom's leased access certification form also notes that "rates for indecent programming shall include reasonable charges and expenses incurred by Viacom with respect to separation of such programming." Marx Decl., Exh. B at p. 2.

 After the court denied plaintiffs' motion for a TRO, leased access plaintiffs submitted a certification to Viacom that "Erotica SF" did not contain any obscene material. Plaintiffs were unwilling to make the same certification concerning indecent material because they believed that Viacom's requirement of such a certification was unconstitutional.

 Plaintiffs now move for a preliminary injunction enjoining Viacom from implementing its new segregation policy or otherwise exercising editorial control over non-obscene programming on its leased access or public access channels.


A. Standards for Preliminary Injunction.

 The traditional test in the Ninth Circuit for issuing a preliminary injunction includes consideration of four factors:

(1) The likelihood of the plaintiff's success on the merits;
(2) the threat of irreparable harm to the plaintiff if the injunction is not imposed;
(3) the relative balance of this harm to the plaintiff and the harm to the defendant if the injunction is imposed; and
(4) the public interest.

 State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir. 1988) (citing Los Angeles Memorial Coliseum Comm'n v. National Football ...

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