CBS Inc. v. SmithCBS Inc. v. Smith
- Reporters:
- ,
- Before:
- Marcus
ORDER OF PRELIMINARY INJUNCTION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
MARCUS, District Judge.
THIS CAUSE has come before the Court upon the Emergency Motion by the Plaintiffs CBS Inc. (“CBS”), American Broadcasting Companies, Inc. (“ABC”), National Broadcasting Company, Inc. (“NBC”) and Miami Daily News Inc. (“The Miami News”) for a preliminary injunction enjoining the Defendants Secretary of State Jim Smith and David Leahy, Supervisor of Elections of Dade County, Florida from enforcing
By this emergency application, the Plaintiffs seek preliminarily to enjoin the Defendants from enforcing or threatening to enforce this statute against the peaceful and orderly solicitation of opinions during the up-coming presidential primary on March 8,1988 (“Super Tuesday”), including the conduct of interviews and exit polls by the media within 150 feet of the voting place.
In view of the immediate time constraints presented by the emergency motion and the important issues at stake, we set this cause down for an evidentiary hearing and argument on February 26, 1988, upon three days notice to all parties. Because we have concluded that this statute’s prohibitions are inconsistent with the commands of the First and Fourteenth Amendments to the United States Constitution, we grant the preliminary relief sought by these Plaintiffs. On the record now before us, we hold that
Based upon the evidence presented, the pleadings and memoranda filed and argument of counsel, we make the following Findings of Fact and Conclusions of Law.
I. FINDINGS OF FACT
A. THE PARTIES
1. The Plaintiff CBS is a corporation organized and operating under the laws of New York state. CBS is a broadcast news organization engaged in the gathering of news, the production of news programming, and the dissemination of news through the CBS network of wholly owned and affiliated television and radio broadcasting stations in the State of Florida and throughout the country. Whenever an important presidential primary or an election of national significance is held, CBS News presents special programming or coverage of that election, broadcast nationwide over a network of radio and television stations.
2. The Plaintiffs ABC and NBC similarly are organized and engaged in the business of gathering, producing, and disseminating the news to affiliated broadcast stations in this State and throughout the country.
4. Defendant Jim Smith (“Smith”) is Secretary of State of Florida and has been sued in his official capacity. As Secretary of State, Smith is the chief election officer in Florida.
5. Defendant David Leahy (“Leahy”) is the Supervisor of Elections for Dade County, Florida; he, too, is named only as a Defendant in his official capacity as Supervisor of Elections. As Supervisor of Elections, Leahy is charged by law with the duty to determine in each precinct the area within which soliciting of opinion is unlawful, and to take any reasonable action necessary to ensure order at the polling places throughout the county.
B. BACKGROUND OF FLA.STAT.
6. The statutory history leading to the passage of
The second provision, section 104.36, was more specific in its reach, and, like the statute at issue today, it prohibited any solicitation of votes, contributions or opinions, although within 100 yards of any polling place:
Any person who, within 100 yards of any polling place on the day of any election, distributes or attempts to distribute any political or campaign material; solicits or attempts to solicit any vote, opinion, or contribution for any purpose; solicits or attempts to solicit a signature on any petition; or, except in an established place of business, sells or attempts to sell any item is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
In 1984, the Florida legislature passed Chapter 84-302, which amended section 104.36 to specify that the 100-yard restricted zone contained in the statute
shall be measured from the entrance to the room or other area in which the voting equipment or pollworkers are housed.
7. Section 104.36 was held unconstitutional on First Amendment grounds in Clean-Up ‘84 v. Heinrich, 582 F.Supp. 125 (M.D.Fla.1984) (“Clean-Up ‘84“). In that case, the plaintiff, a political action committee seeking to solicit signatures on initiative petitions, obtained a preliminary injunction prohibiting enforcement of the statute on the day of the November 1984 general election. Soon thereafter, the court, after a non-jury trial on the merits, struck down the statute as unconstitutional, Clean-Up ‘84 v. Heinrich, 590 F.Supp. 928 (M.D.Fla.1984), and issued permanent injunctive relief barring its enforcement. The United States Court of Appeals for the Eleventh Circuit affirmed this decision in Clean-Up ’84 v. Heinrich, 759 F.2d 1511 (11th Cir.1985).
8. In October 1985, the Spanish International Communications Corporation, which operates television Channel 23 in Miami, obtained a temporary restraining order in this Court enjoining the State’s threatened enforcement of section 104.36 — the same law struck down in Clean-Up ’84 —against Channel 23 to prevent it from exit polling within 300 feet of the polling place in the November 1985 election. Spanish International Communications Corp. v. Firestone, No. 85-3453-CIV-Hastings (S.D.Fla. Nov. 1, 1985). The order held that the 100-yard prohibition would “destroy the validity of Plaintiff’s ‘exit-polling’ procedures and cause loss of vital electoral information permanently.” Id. at 2.
9. Effective January 1, 1986, the Florida legislature amended
10. In 1987, the Florida legislature once again amended
(3)(a) No person, political committee, committee of continuous existence, or other group or organization may solicit voters within 150 feet of any polling place, or polling room where the polling place is a shopping center or mall on the day of any election.
(b) For the purpose of this subsection, the term “solicit” shall include, but not be limited to, soliciting or attempting to solicit any vote, opinion, or contribution for any purpose; distributing or attempting to distribute any political or campaign material; soliciting or attempting to solicit a signature on any petition; and selling or attempting to sell any item, except within an established place of business.
(c) Each supervisor of elections shall determine and inform the clerk of each precinct of the area within which soliciting is unlawful, based on the particular characteristics of that polling place. The supervisor or the clerk may take any reasonable action necessary to ensure order at the polling places affected by such soliciting, including designating a specific limited area for soliciting and having disruptive and unruly persons removed by law enforcement officers from the polling place.
11. The legislature also amended section 101.121, to redefine that section’s restricted zone to 50 feet from a polling room, rather than polling place. Section 101.121 does, however, remain inapplicable to private property. Notably, the Plaintiffs do not challenge the restricted zone of 50 feet as measured from a polling room.
12. On February 26, 1988, the Honorable Howell W. Melton, United States District Judge, Middle District of Florida, entered a preliminary injunction enjoining the Sheriff of Duval County and the Supervisor of Elections from Duval County from enforcing or threatening to enforce
13. The parties to this lawsuit have agreed that Judge Melton’s recent order, although relevant to the issues we now face, does not resolve the basic question of whether
C. THE HEARING
14. An emergency preliminary injunction hearing was conducted by this Court
15.Warren Mitofsky testified that as an important part of its coverage of elections, CBS News conducts “exit polls” throughout the United States. These polls involve the collection of data from a random sample of voters at a sample of polling places on primary and election days. The poll is conducted by interviewing voters in a scientifically predetermined pattern as they leave the voting place. The information gathered through exit polls is included in CBS News’ election night coverage and also is used in post-election studies and analyses of the election results.
CBS first began using the exit poll in 1967. Today CBS News conducts exit polls in most states, along with a national poll in connection with its coverage of the important 1988 presidential primaries and the November 1988 election. Plaintiffs NBC and ABC have also engaged in the conduct of exit polls throughout the country. These polls are designed to gather information about the voters’ reactions in particular states to contests for President, Governor or Senator in applicable years, as well as the voters’ opinions on issues of local and national importance. Additionally, the exit polls seek factual information from the voters as well, including such information as age, sex, race, religion, and family income.
Mitofsky indicated that CBS planned to conduct both statewide and regional polls— including one in Florida — in connection with the March 8, 1988 presidential primaries. Mitofsky further opined that the information collected in Florida is extremely important to the analysis of attitudes and voting patterns throughout the southern part of the country, as a result of Florida’s size, its explosive rate of growth, and its demographic diversity. This information would be used by CBS in election night coverage to formulate projections of the outcome of certain races, and to highlight and explain demographic patterns, trends, and issues of public importance. Moreover, CBS compiles the information gathered through its exit polls in a computer report from which detailed analyses of voting behavior can be made. The data compiled from these exit polls is subsequently archived at the Roper Center at the University of Connecticut and the University of Michigan, and is available to social scientists, historians and other students of voting behavior nationwide.
16. Mitofsky further explained the manner of conducting exit polls: Throughout Florida, at 50 to 75 pre-selected precincts, at least one polling reporter clearly identifiable by a CBS News logo, is assigned. The reporter is instructed to ask the exiting voter in a business-like fashion to fill out a basic questionnaire which takes some two to five minutes to complete. The polls would be conducted at approximately ten selected precincts in Dade County. (There are some five hundred precincts in all of Dade County.)
17. Mitofsky, undisputably a qualified expert in the field of polling voter preferences, testified that exit polls provide very reliable data about voter behavior precisely because of the near certainty that the person interviewed has actually voted. He explained that the greater the distance from the polling place that the reporter is required to stand, the less reliable the gathered information becomes. As the distance increases, the likelihood of the voter melding into a crowd of non-voters, or otherwise leaving increases markedly. Moreover, as the distance increases, it becomes more dif
Dr. Ladd also indicated in his affidavit that exit polls have become a prime source of election data widely used by political writers and scholars. Indeed, Ladd characterized exit polls as “a priceless resource in the study of voter behavior and elections. There exists no other polling technique that provides as reliable a source of information on voters and voting behavior.” (Ladd Affidavit at 7; Plaintiffs’ Exhibit 7). As a result of the extensive nature of the information available because of exit polling, these polls have become a prime source of data for political contests and scholars.
18. Finally, Mitofsky testified that in the twenty years he has supervised the acquisition and analysis of polling information for CBS, he is unaware of any official complaint that a CBS poll reporter interfered with any voter at the polls, or in any way discouraged voters from voting as a result of conducting exit polls. He testified that only one time in 1986 had he learned that an interviewer in the mid-west had been rude at a polling place. He also explained that in light of the great number of precincts and the very small number actually sampled, the probability of more than one network pollster being at the same precinct at the same time was very small.
19. The Miami News also offered an affidavit of Paul Kaplan, its City Editor. Kaplan explained that as an integral part of its election coverage, the Miami News, being an afternoon paper, interviews voters after they have voted at polling places in specific and predetermined communities on election day. These interviews are designed to gather information and opinions on issues of public importance and to explore the voters’ reactions to candidates and issues. Kaplan indicated that in the past his reporters had conducted exit interviews within 150 feet of the polling place without incident, but that voter interviews could not be conducted reliably at a distance of 150 feet from the polls.
20. The defense broadly posited two interests served by the statute in question: first, that the statute “creates a zone of privacy for voters consistent with the State’s recognized policy determination to establish a protected area of voter sanctity and electoral decorum” (Defendant Jim Smith’s Memorandum of Law in Opposition to Emergency Motion for Preliminary Injunction at 2); and second, inasmuch as some voting places are situated on private property, including churches, by limiting the nature and extent of solicitation at or near the polling place, the statute tends to increase the willingness of private owners to make their property available to the State for this purpose.
21. David Leahy, Supervisor of Elections for Dade County, testified at length as to the wisdom and efficacy of
22. Leahy testified that between 1984 and 1986 Dade County lost 23 of some 500 polling places as a direct result of campaign and signature solicitation at the polls. Most of the lost facilities were church property, and involved churches
23. At the request of this Court, Leahy attempted to ascertain to what extent at Dade County precincts a 150-foot zone from the polling place would encompass within its geographic ambit adjacent public sidewalks, public streets and the like. Five polling places apparently were randomly selected and the distance measured from each polling place to the sidewalk or the street. Notably, Leahy indicated that four of the five polling precincts sampled included within 150 feet of the polling place, public streets, sidewalks or parking facilities. In one instance, the distance measured from the polling place to the adjacent sidewalk or parking lot was only 32 feet; in another, 80 feet; in a third, some 139 feet; in a fourth, 145 feet; and in the last one, 174 feet.
24. The application of a 150-foot boundary from the 500-plus polling places in Dade County would in essence proscribe solicitation of all voter opinion on public sidewalks and public streets, in public parks, and at or near at least nine seats of government or municipal buildings.
25. The Defendants also offered portions of transcript testimony given by Donald L. Hersey, Supervisor of Elections for Putnam County and President of the Florida State Association of Supervisors, and Lee Jarrell, Assistant Supervisor of Duval County, at a hearing held before Judge Melton. Among other things, Hersey testified, as Leahy had, that one of the central concerns prompting the Florida legislature to enact the 1987 amendments was the objection interposed by churches to the content of specific solicitations for signatures with respect to such controversial subjects as the legalization of casino gambling at or near the polling place. Hersey said that some churches actually withdrew polling places as a result of signature solicitations, and he feared that others would too. Jar-rell corroborated this testimony. Hersey further indicated that he had received numerous complaints from people about candidates who posted campaign literature within the proscribed zone. Hersey offered no testimony, however, as to any problem, actual or feared, resulting from exit polling or journalistic interviews within 150 feet of the polling place anywhere in the state.
26. Hersey testified further that he employs a deputy sheriff at each polling place in order to maintain order. Finally, Hersey indicated that he would not attempt to enforce the statute’s ban on solicitation within 150 feet of a polling place when the activity occurred on private property. He added that this was his personal interpretation of the statute, and that other supervisors might interpret the statute differently.
27. Leahy testified that he intends to enforce the prohibitions contained in
II. CONCLUSIONS OF LAW
1. Pursuant to
2. At the outset we emphasize that “[a] preliminary injunction ... is an extraordinary remedy, and the boundaries within which the district court may exercise its discretion are clearly marked.”
Shatel Corp. v. Mao Ta Lumber & Yacht Corp.,
697 F.2d 1352, 1354 (11th Cir.1983). It is clear that the moving party seeking preliminary injunctive relief pursuant to
3. At issue today is whether the state can prohibit the media from the solicitation of all opinion from the voters of Florida, within 150 feet of the polling place, without regard to whether the conduct is disruptive, and without concern as to whether the prohibition encompasses public streets, public sidewalks, public parks or other traditionally public forums. Indisputably,
4. The gathering of news of political consequence is a necessary corollary to the freedom to report about politics and government.
See Richmond Newspapers Inc. v. Commonwealth of Virginia,
448
5. The Plaintiffs have a substantial likelihood of prevailing on the merits in this case precisely because
The Florida statute at issue is fatally overbroad then because it prohibits even peaceful, thoughtful discussions with voters regarding how they voted and why. Under Florida law, no person may approach a voter within the zone and ask the voter his or her opinion. It does not matter that the voter wants to speak or that the reporter wishes to listen, or that the discussion is wholly non-disruptive.
6.
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges,immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). Any restrictions on expressive activities in public areas must be subject to the strictest scrutiny. The record evidence has established that a 150-foot zone created by statute would encompass within its geographic ambit in Dade County public sidewalks, streets and parks, along with at least nine seats- of local government.
We add that in this respect, section 102.-031(3) is similar to section 104.36, which was held to be an unconstitutional infringement of the freedom of speech in Clean-Up ’84 v. Heinrich, 759 F.2d 1511, 1514-15 (11th Cir.1985), aff‘g 590 F.Supp. 928 (M.D.Fla.1984). In that case, the Eleventh Circuit struck down the statute for over-breadth because the 300-foot radius then at issue included within its scope areas such as private homes and businesses, “where the gathering of signatures could impose no threat to the voting process.” Id. See also Daily Herald v. Munro, supra, at 384 (“[PJublic areas within 300 feet of entrance to polling place are traditional public forums because they traditionally are open to the public for expressive purposes, including random interviews by re-porters_”).
7. The State surely has a substantial interest in preserving the fairness and integrity of elections and ensuring a protected area of voter sanctity and decorum, for the right to vote is a fundamental one. Reynolds v. Sims, 377 U.S. 533, 554-55, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1964). See also Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982). The problem we face is not in positing this undeniably important state interest, but rather the manner in which the statute attempts to serve it.
Because the statute so broadly restricts expressive activity, the State must use the least restrictive means in achieving its goal. To the extent that the statute is designed to prevent disruption at the polling place, the statute cuts too deep because it proscribes all exit polling and interviewing, whether disruptive or not. Moreover,
’ 8. Defendant Leahy has cited to
Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) in support of the contention that the state is not required to adopt the least restrictive alternative when that alternative — the prohibition of only disruptive solicitation — would be impractical. In
Heffron
the Supreme Court upheld a local rule promulgated by the Minnesota Agricultural Society for application at the State Fair, which required those who sought to sell or distribute printed materials to do so at a licensed location. The state fair rule was upheld because the High Court concluded that it served a significant governmental interest when there was no practical less-restrictive alternative.
9. Defendants also contend that insofar as this statute is overbroad in the sense that it prohibits protected speech in traditionally public areas, we should redraft
10. Defendants have proffered a second interest served by the statute in question: by limiting solicitation at or near the polling place the statute tends to encourage private owners to make their property available as a polling place. What this argument really amounts to in the context of this case is that private property owners, unhappy with the nature and content of solicitation, will withdraw the use of their property, thereby causing the Supervisor of Elections to look elsewhere for a precinct polling place. We are unpersuaded by the argument. First, a fair review of this record has not established any inability on the part of the Supervisor of Elections to locate and obtain appropriate polling places consonant with the state election law. Second, there has been no showing that any private owner has withdrawn his property as a polling place because of any exit poll or interview conducted by any reporter. Third, any suggestion that this statute even indirectly is designed and intended to limit the robust debate of controversial and noteworthy public issues, especially in a public forum, conflicts with the command of the First Amendment.
11. The Plaintiffs will suffer irreparable injury if the State is not preliminarily enjoined from enforcing this statute. This Circuit has held that the loss of First Amendment rights, even for a brief period, causes irreparable harm.
Cate v. Oldham,
707 F.2d 1176, 1188 (11th Cir.1983);
see also Florida Committee for Liability Reform v. McMillan,
682 F.Supp. 1536, 1542,
supra.
Here, the enforcement of
12. On the other hand, based on the evidence presented at the hearing of February 26, 1988, an order enjoining the enforcement of
13. Finally, such an injunction would not be adverse to the public interest. Rather, we believe, that interest would be advanced as our system of government begins with “a profound national commitment to the principal that debate on public issues should be uninhibited, robust and wide open_” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).
14. This Court has the discretion to issue an injunction without requiring security from the Plaintiffs. See Florida Committee for Liability Reform v. McMillan, 682 F.Supp. 1536, 1543, supra; Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 302-03 (5th Cir.1978). The Plaintiffs shall not be required to post a bond. Clean-up ’84 v. Heinrich, 582 F.Supp. 125, 127 (M.D.Fla.1984).
Accordingly, it is
ORDERED AND ADJUDGED:
1.That Plaintiffs’ emergency motion for a preliminary injunction is hereby granted. Defendant Jim Smith, in his official capacity as Secretary of State of the State of Florida, and Defendant David Le-ahy, as Supervisor of Elections of Dade County, Florida, and all their officers, agents, servants, employees and attorneys, and all those persons in active concert or participation with them who receive actual notice of this notice by personal service or otherwise, including all supervisors of elections in the State of Florida, their officers, agents, servants, employees and attorneys and all persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, are hereby prohibited and restrained until further order of this Court from:
(a) enforcing or threatening to enforceFla.Stat. § 102.031(3) against exit polling, the conducting of voter interviews and any other journalistic activity by broadcasters, newspapers and journalists during the March 8, 1988 presidential primary; or
(b) otherwise preventing (except as provided insection 101.121 ) plaintiffs or any other journalists from lawfully exercising their constitutional rights to engage in speech or other expressive activity within 150 feet of any polling place within the State of Florida in the presidential primary on March 8, 1988.
2. This injunction shall not restrain those persons whose duty it is to police the polling places from the performance of their duty to protect voters or prospective voters from interference with the free exercise of their voting rights. This injunction shall not in any way affect enforcement of
3. This injunction is issued without requiring Plaintiffs to post security.
4. This injunction shall remain in full force and effect until the entry of a final judgment, unless it is dissolved by order of the Court upon good cause shown.