WHITELAND WOODS, L.P., Appellant v. TOWNSHIP OF WEST WHITELAND; West Whiteland Board of Supervisors; West Whiteland Planning Commission; Diane S. Snyder; Jerry Poletto; Jack C. Newell; Kathi Holahan; Nancy Carville; Carl Dusinberre v. John D. Snyder.
No. 97-1944.
United States Court of Appeals, Third Circuit.
Decided Sept. 23, 1999.
Argued June 5, 1998. Reargued Dec. 4, 1998.
193 F.3d 177
Thomas X. McAndrew, Jr., Siana & Vaughan, Exton, Pennsylvania; Jeffrey R. Baldyga (Argued 6/5/98),* Siana, Shields & Vaughan, Exton, Pennsylvania, for Appellees, Township of West Whiteland; West Whiteland Board of Supervisors; West Whiteland Planning Commission; Diane S. Snyder; Jerry Poletto; Jack C. Newell; Kathi Holahan; Nancy Carville; and Carl Dusinberre.
Geoffrey C. Jarvis (Argued 12/4/98), Richard A. Sprague, Sprague & Sprague, Philadelphia, Pennsylvania; Guy A. Donatelli, Lamb, Windle & McErlane, West Chester, Pennsylvania, for Appellee, John D. Snyder.
Before SCIRICA, NYGAARD and SEITZ,** Circuit Judges.
Before SCIRICA, NYGAARD and ROSENN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
In this civil rights action, real estate developer Whiteland Woods, L.P., a subsidiary of Toll Brothers, asserts that its First and Fourteenth Amendment rights were violated by a township‘s refusal to allow videotaping of a meeting of the Township Planning Commission. In a parallel state court action, the township acknowledged that Pennsylvania‘s Sunshine Act,
I
On June 24, 1996, Whiteland Woods filed a tentative application with West Whiteland Township, Chester County, to build a residential community on a 162.5-acre parcel in the township. The application was placed on the agenda for the September 25, 1996 meeting of the West Whiteland Planning Commission.
At the September 25 meeting, attorney Thomas A. Riley presented Whiteland
Jack Newell, president of the Planning Commission, placed Snyder‘s resolution on the agenda and Snyder presented it at the end of the meeting. Members of the Planning Commission discussed the proposed resolution, with participation by Riley and Michael Greenberg, vice president of Toll Brothers. Newell explained that he believed videotaping would inhibit candid discussion by township residents. Other members of the Planning Commission expressed resentment at being videotaped and stated that videotaping could be intimidating. Greenberg, on the other hand, said he wanted a video record of all proceedings and Riley informed the Commission that he believed allowing videotaping was required by Pennsylvania‘s Sunshine Act. Nevertheless, the Planning Commission adopted the resolution banning videotaping by a vote of four to two. The Planning Commission did not prevent Whiteland Woods from videotaping the September 25 meeting.
On October 4, 1996, counsel for Whiteland Woods sent the Planning Commission written notification of Whiteland Woods’ intention to videotape a meeting scheduled for October 9, 1996. On October 8, 1996, Snyder wrote informing Whiteland Woods that the Township would not permit videotaping and stating, “Under the circumstances, if you decide to undertake the effort and expense of bringing video cameras and videotaping equipment to the meeting you must do so at your own risk. . . .” The same day, the township‘s Board of Supervisors, following the lead of the Planning Commission, enacted Resolution 96-10 banning the use of video recording devices at meetings of the Board of Supervisors. Resolution 96-10 provided in part: “The following regulations shall govern the use of electrical/mechanical recording equipment during public meetings of the Board: . . . (c) Only audio recording or stenographic recording equipment may be used i.e. no video recording equipment shall be permitted. . . .”
Representatives of Whiteland Woods brought video recording equipment to the Planning Commission‘s October 9, 1996 meeting, but Officer John Curran of the West Whiteland Township Police Department informed Whiteland Woods’ representatives they could not make a video recording of the meeting. Accordingly, Whiteland Woods left the camera facing the wall and made no videotape of the meeting.
On October 14, 1996, Whiteland Woods filed suit in the Court of Common Pleas of Chester County, seeking injunctive relief and relief under the Pennsylvania Declaratory Judgments Act,
Whiteland Woods then sought additional relief, filing a suit in the Court of Common Pleas for Chester County on November 13, 1996 for alleged violations of the First and Fourteenth Amendments under
The District Court granted summary judgment on behalf of the Township defendants on the
II
The District Court had federal question jurisdiction under
III
A
The primary issue on appeal is whether there is a federal constitutional right to videotape public meetings of a township planning commission when other effective means of recording the proceedings are available. “It is now well established that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Because a “major purpose of[the First] Amendment was to protect the free discussion of governmental affairs,” Globe Newspaper v. Superior Ct., 457 U.S. 596, 604, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (internal quotation marks omitted), the public and press have the right to attend certain types of governmental proceedings. See, e.g., id. at 603 (criminal trials); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-1070 (3d Cir.1984) (civil trials).
We have no hesitation in holding Whiteland Woods had a constitutional right of access to the Planning Commission
“[1] promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; [2] promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; [3] providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; [4] serving as a check on corrupt practices by exposing the judicial process to public scrutiny; [5] enhancement of the performance of all involved; and [6] discouragement of perjury.”
United States v. Simone, 14 F.3d 833, 839 (3d Cir.1994) (bracketed numbers in original).
Public access to Township Planning Commission Meetings is guaranteed by the
But the public‘s right of access is not absolute. In holding that a criminal trial may not be completely closed to the public, the Supreme Court emphasized,
[O]ur holding today does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. . . . “[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion) (quoting Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941)) (citations omitted); see also id. at 600 (Brennan, J., concurring); Globe Newspaper, 457 U.S. at 607 n. 17. The Supreme Court also found no constitutional violation in the denial of a press request for access to county jail facilities for the purpose of investigating conditions in the jail, noting it had “never intimated a First Amendment guarantee of a right of access to all sources of information within government control” and that the “undoubted right to gather news . . . affords no basis for the claim that the First Amendment compels others—private persons or governments—to supply information.” Houchins v. KQED, Inc., 438 U.S. 1, 9, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (plurality opinion). Thus, the First Amendment does not require unfettered access to government information.
The District Court analyzed Whiteland Woods’ First Amendment claim under the traditional public forum doctrine.2 See Whiteland Woods, 1997 WL 653906, at *6. The Court of Appeals for the Eleventh Circuit has also analyzed prohibitions on recordings of public proceedings under standards similar to those applied to time, place, and manner restrictions on speech in a public forum. See Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (per curiam) (denying summary judgment to defendants for prohibiting audio recording of the Alabama Supreme Court Advisory Committee on Child Support Guidelines because plaintiffs alleged a non-content-neutral prohibition); United States v. Hastings, 695 F.2d 1278, 1282 (11th Cir.1983) (upholding prohibition on videotaping, photographing, and radio broadcasting in the courtroom). In contrast, the Courts of Appeals for the Seventh and Second Circuits have required only that restrictions on videotaping or audiotaping be content-neutral and reasonable, the standards applied to speech in a nonpublic forum. See United States v. Kerley, 753 F.2d 617, 620-21 (7th Cir.1985) (upholding exclusion of television cameras from criminal trial); United States v. Yonkers Bd. of Educ., 747 F.2d 111, 114 (2d Cir.1984) (upholding ban on audiotape recording of civil trial).
We are not convinced that forum analysis is necessary to resolve such re-
[I]t has never been suggested that there is a link between the First Amendment interest that a litigant has in his trial as a “form of expression” and the right that the public may have to view that expression on television. Whatever public forum interest may exist in litigation, that interest is clearly a speaker‘s interest, not an interest in access to the courtroom. Because the ability of neither General Westmoreland nor CBS to express views at trial is altered by the presence or absence of television cameras, CNN‘s public forum argument is, by itself, inapposite.
Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16, 21-22 (2d Cir.1984). Westmoreland was decided three days after Yonkers Board of Education, which, as noted, evaluated a ban on audio recording using criteria similar to those governing restrictions on expressive speech in a non-public forum. See 747 F.2d at 114 (upholding the ban because it was content-neutral and reasonable). Although the two panels applied somewhat different tests to the similar questions before them, their analyses are consistent. The critical question regarding a content-neutral restriction on the time, place, or manner of access to a government proceeding is whether the restriction meaningfully interferes with the public‘s ability to inform itself of the proceeding: that is, whether it limits the underlying right of access rather than regulating the manner in which that access occurs.
In this case, Whiteland Woods’ right of access to the October 9 Planning Commission meeting was not meaningfully restricted by the ban on videotaping. The Township did not curtail Whiteland Woods’ ability to express its views before the Planning Commission or to compile an accurate record of the proceedings. Nor did it prohibit interested parties, reporters, or members of the public from attending the meetings or limit the gathering of information by means other than by videotaping. Spectators were free to take notes, use audio recording devices, or even employ stenographic recording. Nothing in the record suggests videotaping would have provided a uniquely valuable source of information about Planning Commission meetings. The First Amendment does not require states to accommodate every potential method of recording its proceedings, particularly where the public is granted alternative means of compiling a comprehensive record. See Combined Communications Corp. v. Finesilver, 672 F.2d 818, 821 (10th Cir.1982) (upholding ban on television coverage of court-ordered negotiations over electoral redistricting where members of the press were permitted to attend the meetings and take notes); Garrett v. Estelle, 556 F.2d 1274, 1279 (5th Cir.1977) (upholding prison‘s prohibition on filming execution because there were other methods of informing the public of the execution); Johnson v. Adams, 629 F.Supp. 1563, 1564-65 (E.D.Tex.1986) (holding county commissioners may ban video recording of meetings where audiotaping was permitted). To put it another way, plaintiff has failed to demonstrate an essential nexus between the right of access and a right to videotape
Whiteland Woods relies primarily on Cable News Network, Inc. v. American Broadcasting Companies, Inc., 518 F.Supp. 1238 (N.D.Ga.1981), in which the court considered restrictions on the press coverage of presidential activities. When only limited numbers of media representatives could be admitted to a given event, the Reagan administration admitted a media “pool” including a single television camera crew, which shared its feed with others seeking to cover the event. Traditionally, the pool representative had rotated among the three established television networks: ABC, CBS, and NBC. When CNN sought to be included in the rotation, the administration announced that television representatives would be banned from pooled coverage unless the four networks agreed among themselves to a pool rotation system. In striking down this restriction, the court found that television coverage of these events had traditionally been permitted, that such coverage provided information qualitatively different from that available through print media, and that the administration‘s motive was to avoid designating members of the pool rather than terminate press coverage. See id. at 1244-45. Because none of these factors is present here, we believe Cable News Network is inapposite.3
We conclude that Whiteland Woods’ right of access to Planning Commission meetings did not create a federal constitutional right to videotape the meetings. Whiteland Woods was allowed to attend all the meetings of the Planning Commission, including the October 9 session, and to compile a full record of the proceedings, whether by written and stenographic notes or audiotaping. Therefore, we believe the restriction on videotaping did not violate the First Amendment.
B
Whiteland Woods also claims the Township violated its Fourteenth Amendment substantive due process rights when Officer Curran informed its representatives they could not videotape the October 9, 1996 meeting. Whiteland Woods does not base its claim on an alleged infringement of its fundamental rights under the First Amendment but instead on “what is arguably the most frightening and egregious abuse of governmental power which is the illegal deprivation of liberty by a municipal government through the raw use of its police force.” (Appellant‘s Br. at 26.)
We have recently reviewed the substantive limitations imposed by the due process clause on executive action such as police conduct:
“The touchstone of due process is the protection of the individual against arbitrary action of government.” . . . [W]here abusive action by a member of the executive branch is alleged, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” To generate liability, executive action must be so ill-conceived or malicious that it “shocks the conscience.”
Miller v. City of Philadelphia, 174 F.3d 368, 374-75 (3d Cir.1999) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citation and internal quotation marks omitted)). The District Court found that this standard had not been met: “The police offi-
IV
For the foregoing reasons, we will affirm the grant of summary judgment.
SCIRICA
CIRCUIT JUDGE
Notes
The Court has identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Traditional public fora are defined by the objective characteristics of the property, such as whether, by long tradition or by government fiat, the property has been devoted to assembly and debate. . . .
Designated public fora, in contrast, are created by purposeful governmental action. The government does not create a designated public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse. . . .
Other government properties are either nonpublic fora or not fora at all.
Arkansas Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (citations, internal quotation marks, and alterations omitted). Time, place, and manner restrictions on speech in a public forum are permissible “provided [1] the restrictions are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks omitted). Restrictions on speech in a non-public forum must be reasonable and content-neutral. See Arkansas Educ. Television Comm‘n, 523 U.S. at 677-78.In addition, the Supreme Court has discussed “limited” public fora, which are designated for expression, but only on limited topics. See, e.g., Rosenberger v. Rector and Visitors of Univ., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Although there is some uncertainty whether limited public fora are a subset of designated public fora or a type of nonpublic fora, see Summum v. Callaghan, 130 F.3d 906, 914-15 (10th Cir.1997) (discussing cases), we have generally applied to limited public fora the constitutional requirements applicable to designated public fora. See Christ‘s Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242, 248-55 (3d Cir.1998).