United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2026

___________ Jay R. Coplin, * * Appellant, * * v. * * Fairfield Public Access * Television Committee; Robert * Glocke, Chairman, FPATV * Committee; Allen Glonek, FPATV * Committee member; Susan Kessel, * FPATV Committee member; Paul * Appeal from the United States Stokstad,FPATV Committee member;* District Court for the Robert Gates, FPATV Committee * Southern District of Iowa. member; Lewis Wilson, II, FPATV * Station Manager; City of * Fairfield, Iowa; Robert * Rasmussen, as Mayor; Ed Malloy, * member of City Council; Jay * Silverman, member of City * Council; Philip Young, member * of City Council; Joe Frakes, * member of City Council; Richard * Schneider, member of City * Council; Jeff Harris, member of * City Council; Mary Louise * Sutherlin, member of City * Council, * * Appellees. *

___________ Submitted: December 9, 1996 Filed: April 30, 1997

___________ Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________

### Following the bifurcation of the proceedings, the partie s 1 

### agree d, pursuant to 28 U.S.C. § 636(c) (1994), to have the cas e tried by a United States Magistrate Judge.
-2- MAGILL, Circuit Judge.

Randy Coplin brought this action under 42 U.S.C. § 1983 (1994 ) against the Fairfield Public Access Television C ommittee (FPATV Committee) and mem bers of the Fairfield, Iowa City Council (Council) for allege d violati ons of Coplin’s rights under the First Amendment and the Cabl e Communica tions Policy Act of 1984, 47 U.S.C. §§ 521-559 (1994 & Supp. I 19 95). Coplin seeks injunctive relief, declaratory relief, monetar y damage s, and attorney’s fees. The district court bifurcated th e proceedings; the issu es on which Coplin sought injunctive and declaratory relief were to be presented in a bench trial while the monetary damages an d attorney’ s fees claims were to be heard, if necessary, in a jury trial

. Upon cross-motions for summary judgment in the bench trial, the district
cour t granted summary judgment to the FPATV Committee and the Council ,

1 dismis sing Coplin’s claims for injunctive and declaratory relief. Th e district court also h eld that 47 U.S.C. § 555a(a) (1994) precludes Coplin from recovering monet ary damages and attorney’s fees. We affirm in part, reverse in part, and remand.

I.
The FPATV Committee is a regulatory and advisory board created by the Counc il. The primary responsibility of the FPATV Committee is t o superv ise, manage, and control the activities of the Fairfield Publi c Access Television channel (FPATV). To fulfill its responsibility, th e FPATV Committee promulgated the “Fairfield Public Access TV Rules , Regulations and Guidelines” (FPATV Rules).

### -3-

Under FPATV Rule I(A), “[t]he Fairfield Public Access TV (FPATV) facilitie s and cablecasting on F airfield’s Public Access TV channel are available to any resident of the C ity of Fairfield and its surrounding cable broadcast areas.” FPATV Rule I(A), reprinted in J.A. at 340.
In May 1993, Coplin began producing and hosting a regularly sch eduled talk show entitled Fairfield Speaks that he cablecast over FPATV. The sho w featured interviews with community leaders in government, business, an d educ ation as well as coverage of community events and movie reviews

. Coplin opened each show by displaying and reading a disclaimer, required by FPATV rules, that informed the public that FPATV was not responsible fo r the content of Coplin’s program.

In 1994, a local newspaper columnist, Marni Mellen, wrote a n editorial critical of Coplin. In response, Coplin cablecast a segment on his September 26, 1994 show satirizing Mellen’s views. During the segment , a woman a llegedly pulled up her blouse and exposed her brassiere to th e television camera. In October 1994, the Council and the FPATV Committee passed a resolution declaring the brassiere incident objectionable, an d Copli n received a formal “Objectionable Content Warning” shortl y thereafter. The lett er warned Coplin that “if similar incidents occur in your future productio ns[,] you may [be] subject to sanctions by the FPATV Com mittee. These sanctions may include disallowing your use of FPATV. ” Letter from Lewis Wilson II, Manager of FPATV (Oct. 9, 1994) at 1 , reprinted in J.A. at 157. Before th e warning was thirty days old, Coplin included, on hi s October 23, 1994 show, a one hour-long, live call-in segment in which he invit ed members of his viewing audience to respond by telephone to th e University of Chicago’s "Sex in America" survey,

### -4-

the resul ts of which had recently been published by Time magazine. Se e Philip Elmer-Dewitt, Now for the Truth about Ame ricans and Sex , Time, Oct. 17, 1994, at 62, reprinted in J.A. at 192. The segment was co-hosted by Patti Schneider, a wo man who also produced her own show on FPATV. During the segment, Coplin was dressed in a Halloween costume, including a mask and a wig.

Before any viewers called in, Coplin displayed and read a sig n warning that “Fairfield is participating in a sex survey, please b e discreet and candid in your responses.” Fairfield Speaks Tr. (Oct. 24 , 199 5) at 2, reprinted in J.A. at 160. Coplin then turned to the Tim e article. Reading a question from the article, Coplin asked viewers if the y had “‘the nagging suspicion that in bedrooms across the country, on kitche n tables, in limos and other venues too scintillating to mention, other folk s
are having more sex, livelier sex and better sex.’” Id. (quoting ElmerDewitt, Now for the Truth about Americans and Sex , at 62, reprinted inJ.A
. at 192). He then started taking callers on the air. The calls wer e cablecast live with no delay.

One c aller, named Lyle, who claimed to live in a trailer park , responded to the question by reporting that “I have that suspicion tha t other people are having more sex, because my neighbor, I look at thei r window and I see them going at it all the time.” Id. at 5, reprinted in J.A. at 163. With prompting from Coplin, Lyle then revealed the exac t address of his neighbor’s residence (Trailer Park Residence). Id. at 6, reprinted in J.A. at 164. It was later learned that this residenc e actuallydoes exist. During this exchange, Lyle spoke in an accent that he claimed was Irish, yet he also claimed that h e was from Italy. See id. at 7-8, reprinted in J.A. at 165-66.

### -5- The next caller objected to the cont ent of the segment, arguing that “this is certainly no t in very good taste.” Id. at 11, reprinted in J.A. at 169. Coplin and his co-host then engaged the caller in a discussio n about the types of programming that he would prefer. After the call was completed, Coplin and his co-host questioned whether the complaining calle r migh t be “someone on the board.” Id. at 12, reprinted in J.A. at 170

. Although never revealed on the air, it was later learned that the caller was in fact the husband of an FPATV Committee board member.
The following caller identified himself only as “Backyard.” Ba ckyard conjectured that the complaining caller did not like the segment “cause he don’t get no sex.” I d. He further suggested that the complaining caller
was “prob ably doing the five knuckle shuffle on the old fist pump righ t now, anyway.” Id.

Several callers later, a man identif ying himself as “Gordo” bragged: “I get as much sex as I need.” Id. at 25, reprinted in J.A. at 183. He claimed to live on the Harrison part of Second S treet in Fairfield. Gordo opined that “[i]f you live there, you’ll get more sex than you’ll eve r need.” Id. When asked if the sex on Second Street was “premarital sex, marital sex or extramarital sex,” Gordo responded: “Every kind you ca n think of.” Id. at 26, reprinted in J.A. at 184. He then proceeded t o identify a particular house on Second Street (Second Street Residence) by giving its address. It was later learned that this residence exists and was occupied at the time. Gordo reported that “ [t]here’s this green truck that comes there and stays . . . until four in the morning.” Id. Gordo also reported that the truck comes “[a]round lunch time” to which Coplin responded: “Well, kind of a nooner, huh?” Id.

### -6- The fin al caller claimed that he lived in the same neighborhood a s Lyle, the earlier caller allegedly from Italy who spoke in an Irish brogue

. With Coplin’s encouragement, the final caller co nfirmed that the occupants of the Trailer Park Residence “go at it all night and day.” Id. at 28 , reprinted in J.A. at 186. The final caller, like Lyle, gave the address of the residence.

On October 27, 1994, the FPATV Committee convened one of it s reg ularlyscheduled meetings and voted to ban Coplin from producing hi s show , appearing on any other FPATV show, and using FPATV facilities

. Coplin was informed of this decision in a letter dated October 31, 1994. In the letter, the FPATV Committee also explained that they were takin g discipl inaryaction because of the content of Coplin’s programs. Se e Letter fr om Lewis Wilson II, Manager of FPATV (Oct. 31, 1994) at 1 , reprinted inJ.A. at 201 (barring Coplin from FPATV for “the illegal acts of: 1. Invasion of personal privacy. 2. Having content which is, libelous , sl anderous, or defamatory either to individuals, families, o r orga nizations”). On November 3, 1994, Coplin received a letter fro m Fairfield City Attorney, John Morrissey, clarify ing the October 31 letter. Morriss eyexplained that the October 31 letter was only a preliminar y determina tion and that Coplin had a right to a hearing before the FPAT V Committee under Article V(C)(1) of the FPATV Rules. Letter from Joh n Morrissey (Nov. 2, 1994) at 1-2, reprinted in J.A. at 211-12. Co plin appealed the decision on November 10, 1994, and the FPAT V Com mittee set a hearing for December 1, 1994. At the hearing, Copli n responded to the FPATV Committee’s allegations. FPATV Committee members then i ntroduced additional allegations during the latter part of th e meeting, but Coplin w as not allowed to respond to these allegations. The meeting was continueduntil December 7, 1994, so that the new allegations could be more fully

### -7-

discu ssed. Coplin attended the second meeting, but was not allowed t o participate.

The F PATV Committee voted to sanction Coplin for the live call-i n segment. The FPATV C ommittee sent Coplin a letter informing him that the FPATV Committee had d ecided to suspend him “in whole from the station for six (6) months from December 7, 1994, after which he will be eligible to apply for reinstatement through a hearing with the FPATV Committee. ” Letter from Robert Gl ocke, Chairman of FPATV Committee (Dec. 19, 1994) at 2, reprinted in J.A. at 302.
Coplin ap pealed the FPATV Committee’s decision to the City Council, which heard arguments on Coplin’s appeal. The C ouncil voted to uphold the six-month suspension, but modified the term to begin on November 1, 1994, rather than December 7, 1994. Coplin brought this § 1983 action in th e distri ct court against the FPATV Committee and the Council, seekin g injun ctive relief, declaratory relief, monetary damages, and attorney’ s fees.

The FPATV

Committee and the Council moved to dismiss Coplin’s claim for monetary damages and attorney’s fees. See Partial Mot. to Dismiss (Ma y 22, 199 5), reprinted in Jt. Supp. App. at 354. The FPATV Committee an d Council filed a brief in support of their motion, and Coplin responded wit h
a brief resisting the partial motion to dismiss. The district court denie d the partial motion to dismiss without prejudice. Order (July 3, 1995) , reprinted in Jt. Supp. App. at 373. The distr ict court then bifurcated the action between the liability and damages phases. With the agreement of the p arties, the district court orde red that “[t]he first phase of a bifurcated trial, a bench tria l encompassing the issues on which plaintiff

### -8-

seeks declaratory and injunctive relief, will be held before [a magistrate judge]” and that “[t]he second phase of trial, a jury trial on any valid monetary damage claims, will be scheduled for a later date, if necessary.” Id.
After the magistrate judge set a date for the bench trial, both sides moved for summary judgment on Coplin’s claims for injunctive an d declaratory relief. With respect to Coplin’s claims for monetary damages and a ttorney’s fees, none of the parties moved for summary judgment o r presented arguments to the magistrate judge.
The magistrate judge granted summary judgment to the FPATV Committee and the Council on Co plin’s claims for injunctive and declaratory relief. In addition to rejecting several other arguments raised by Coplin, th e magistrate judge concluded that “if the statemen ts about the sexual habits of the residents of [the Trailer Park Residence] and possible extramarital affair at [the Second Street Residence], and masturbation habits of a caller were true , [Co plin’s] broadcast was an invasion of privacy.” Mem. Op. at 15 (emphasis in original) (citing Iowa case law). In th e alternative, the magistrate judge concluded that “[i]f the statements were untrue , then [Coplin’s] broadcast was defamatory.” Id. (emphasis i n original) (citing Iowa case law). The magistrate judge therefore conclude d that “C oplin’s statements broadcast on the ‘Sex Survey’ show were no t
cons titutionallyprotected speech and were subject to sanction withou t

### The magistrate judge apparently concludedthat, regardless of 2 

### whether the statements cablecast on Coplin’s show were true o r false, Coplin committed a state-law tort and that, as a result , Coplin’s speech was unprotected. We recognize that the Unite d States Supreme Court has shown a certain degree of deference fo r state regulation of tortious speech. See, e.g. , Gertz v. Rober t Welch, Inc. , 418 U.S. 323, 347 (1974) (holding that, consisten t with the First Amendment, "the States may define for themsel ves the appropriate standard of liability for a publisher or broadca ster of defamatoryfalsehood injurious to a private individual")

. Ne vertheless, speech constituting a state-law tort is no t necessarilyunprotected speech. As the Supreme Court has mad e clear, states may not regulate speech merely because the speech is define d as a state-law tort. See, e.g. , New York Times Co. v

. Sullivan , 376 U.S. 254, 283 (1 964) (holding that “the Constitution delimits a State’s power to award damages for libel in action s brought by public officials against critics of their officia l conduct”).
-9- violati ng his constitutional rights.” Id. In addition, the magistrat e 2 judge ruled that 47

### The FPATV Committee and the Council have not attempted t o 3 

### justify the regulation on the basis of the need to protect c hildren fr ompatently offensive sex-related material. See Denver Are a Educ. Telecom. Consortium, Inc. v. F.C.C. , 116 S. Ct. 2374, 238 6 (1996) (discussing the permissibility of regulating patentl y offen sive sex-related material that is easily accessible t o children). Nor does the record indicate the degree to whic h Coplin’s show was accessible to children. Accordingly, we do not reach the issue of whether Coplin’s show could be regulated , co nsistently with the First Amendment, in order to protec t children.
-10- U.S.C. § 555a(a) precludes Coplin from recovering monetary damages an d attorney’s fees in this action. Coplin appeals.

II.
Coplin ar gues that his First Amendment rights were violated because the FPATV Committee and the Council regulated his speech on the basis of its content. The FPATV Committee and Council counter that their actions
wer e permissible because Coplin engaged in speech that can be regulate d base d on its content. Because we do not agree that the FPATV Committe e 3 and the Council are entitled to judgment as a matter of law, we reverse th e distri ct court’s grant of summary judgment and remand for furthe r proceedings consistent with this decision.

### -11- We r eview a grant of summary judgment de novo. McCormack v

. Citibank, N.A. , 100 F.3d 532, 537 (8th Cir. 1996). Summary judgment i s only appropriate where the record presents “no genuine issue as to an y mat erial fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The record must be viewed in the light most favorable to the party against whom summary judgment wa s granted. See McCormack , 100 F.3d at 534.

“The Firs t Amendment generally prevents government from proscribing spe ech, or even expressive conduct, because of disapproval of the idea s expressed. Content-b ased regulations are presumptively invalid.” R.A.V. v. City of St. Paul , 505 U.S. 377, 382 (1992) (citations omitted). Thus, bec ause Coplin was banned from FPATV for the content of his show, th e actions of the FPATV Committee and the Council are presumptively invalid.

This presumption is not irrebuttable , however. “[O]ur society, like other free but civilized societies, has permitted restrictions upon th e content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that m ay be derived from them is clearly outweighed by the social interest in ord er and morality.’” Id. at 382 -83 (quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 572 (1942))

. Becaus e these limited areas of speech, which include, for example , obscenity, are of such slight social value, “[th ey] can, consistently with the F irst Amendment, be regulated because of their constitutionall y proscribable content . . . .” Id. at 383 (emphasis in original). These cat egories of speech are not, however, “entirely invisible to the Const itution, so that they may be made the vehicles for conten t discrimination unrelated to their

### In addition, the standards that apply to the governmenta l 4 

### regulation of speech ordinarily vary depending on the forum i n whi ch the regulated speech is delivered. Thus, “control ove r ac cess to a nonpublic forum can be based on subject matter an d speaker identity so long as the distinctions drawn are reasonable in light o f the purpose served by the forum and are viewpoin t neu tral.” Lamb’s Chapel v. Center Moriches Union Free Schoo l Di st. , 508 U.S. 384, 392-93 (1993) (quotations, citations, an d alt eration omitted). However, to control access to a designate d public forum, the government must be able to show a compellin g governmental interest for its restrictions. See Cornelius v . NAACP Legal Defense & Educ. Fund, Inc. , 473 U.S. 788, 800 (1985).
Becaus e the Council designated that FPATV was “available t o anyresident of the City of Fairfield and its surrounding cabl e broadcast areas,” FPATV Rule I(A), reprinted in J.A. at 34 0 (empha sis added), we would ordinarily conclude, under a standar d forum analysis, that FPATV was a designated public forum. H owever, the recent decision of a deepl y divided Court in Denver Area Educ. Telecom. Consortium, Inc. v. F.C.C. , 116 S. Ct. 2374 (1996), ha s cast some doubt on the appropriateness of this analysis. Th e Denver Area Court addressed “First Amendment challenges to thre e st atutory provisions that seek to regulate the broadcasting o f ‘patently offensive’ sex-related material on cable televisio n,” id. at 2380 , including public access channels like FPATV. In a plurality opinion joined by Justices Stevens, O’Connor, and Souter, Justice Breyer cautioned that: [T]he First Amendment embodies an overarching commitment to protect speech from Government regulation throug h close judicial scrutiny, thereby enforcing th e Constitution’s constraints, but without imposing judicia l formulae so rigid that they be come a straightjacket that disables Government from respo nding to serious problems. This Court, in different conte xts, has consistently held that the Government may directly regulate speech t o address extraordinary problems, where its regulations ar e appropriately tailored to reso lve those problems without imposing an unnecessarily great restriction on speech

. -12- distinctively proscri bable content.” Id. at 383-84. Therefore, although the government can re gulate such areas of speech on the basis of content, that regulation must be viewpoint-neutral. Id. at 384 (“[T]he government may proscribe libel; but it may not make the further content discriminatio n of pro scribing onlylibel critical of the government.” (emphasis i n original)). 4

### Justices Kennedy and Thomas would have us further declar e

which, among the many applications of the genera l approach

that this Court has developed over the years, w e are ap plying here. But no definitive choice amon g competing analogies (broadcast, common carrier , bookstore) allows us to declar e a rigid single standard, goodfor now and for all future media and purposes. . .

. [A]ware as we are of the changes taking place in the law , the technology, and the indust rial structure, related to telecommunications, we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now. We therefore think it premature to answer th e broad[question] . . . whether public access channels ar e a public forum . . . .
Id. at 2385 (citations omitted). Justic e Kennedy, who wrote separately and was joined b y Justice Ginsburg, found “the most disturbing aspect of [Breyer’s] plurality opinion” to be “its evasion of any clear legal standard in deciding [the] case.” Id. at 2405. Similarly, Justice Thomas, joined by the Chief Justice and Justice Scalia, characterized the plu rality’s opinion as “deciding not to decide on a governin g standard” and faulted the plurality for “openly invit[ing ] balancing of asserted speech interests to a degree not ordinarily permitted.” Id. at 2422. We would agree that, at least with respect to the appropriate ana lysis that should be applied in the present action, th e plurality’s opinion seems some what enigmatic. Nevertheless, after closelyreviewing the structure of FPATV, we hold that the FPAT V Commit tee and the Council have sufficiently opened FPATV to th e citizens of Fairfield and the surrounding broadcast area tha t control over access cannot be based on subject matter or speake r identity, at least insofar as the speaker is a citizen of Fa irfield or the surrounding broadcast area. Furthermore, we hold that the FPATV Committee and the Council have neither alleged nor prove n “extraordinary problems,” see id. at 2385, that would justif y barring Coplin from using FPATV.
-13- In the pr esent action, the magistrate judge concluded that Coplin’s speech could be regulated on the basis of content if the speech constitute d either an invasion of privacy or defamation. The magistrate judge the n held as a matter of law that the statements made on Coplin’s show were, if true, an invasion of

### -14-

privacyand, if false, defamation. On this basis, the magistrate judg e granted the FPATV Committee’s and Council’s motion for summary judgment.

Because the magistrate judge made no factual findings with respec t to the truthfulness and accuracy of the statements made on Coplin’ s cablecast, the magist rate judge’s grant of summary judgment was dependent on Coplin’s speech be ing an invasion of privacy, if true, and defamation, if false. As a result, we cannot affirm the magistrate judge’s decision unless this Court can rule as a matter of law bo th (1) that the statements
are a constitutionally proscribable invasion of privacy if true and (2 ) that the statements are constitutionally proscri bable defamation if false. If either one of these two prongs of analysis cannot be satisfied, th e FPATV Com mittee and Council are not entitled to judgment as a matter o f law. Because this Co urt can reach neither conclusion as a matter of law,
we con clude that summary judgment was inappropriate. Accordingly, w e reverse the district court’s grant of summary judgment.

A.

Th e magistrate judge held that, if Coplin’s speech were true, i t constituted an invasion of privacy under Iowa law and could therefore be regulated consistently with the First Amendment. Iowa recognizes an actio n in tort for the invasion of privacy and, like many states, has drawn the elements of this action from the Second Restatement of Torts. See Stessma n v. American Black Hawk Broad. Co. , 416 N.W.2d 68 5, 686 (Iowa 1987). Under Iowa law, as relevant here, “‘[t]he right of privacy is invaded by . . .
unreasona ble intrusion upon the seclusion of another . . . [or ]
unreaso nable publicity given to the other’s private life . . . .’” Id

. (quoting

### -15-

Restatement (Second) of Torts § 652A(2) (1977)). These actions are subjec t to cer tain limitations, however, that are informed by First Amendmen t
concerns. See Howard v. Des Moines Register & Tribune Co. , 283 N.W.2d 289 , 297-98 (Iowa 1979). In general, a plaintiff can not bring an action for an invasion of privacy if a reasonable person would not find the intrusio n highly offensive, the facts revealed are already in the public domain, or the m atter publicized is a legitimate concern of public interest. Se e Stess man , 416 N.W.2d at 686-87; Howard , 283 N.W.2d at 298; Winegard v

. Larsen , 260 N.W.2d 816, 822-23 (Iowa 1978).

As the S upreme Court has recognized, there is “tension between th e right which the First Amendment accords to free press, on the one hand, an d the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other . . . .” The Florida Star v. B.J.F. , 491 U.S. 524, 530 (1989). Ye t neither the Supreme Court nor this Circuit has set forth a general standar d to det ermine when speech that reveals truthful facts about privat e in dividuals can be regulated, consistently with the First Amendment

. Indeed, the Supreme Court has declined several i nvitations to do so. See, e.g. , id. at 532 (declining “appellant’s invitation to hold broadly that truthf ul publication may never be punished consistent with the Firs t Amendment” and noting that “[o]ur cases have carefully eschewed reaching this ultimate questio n, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily”); Cox Broad. Corp. v. Cohn , 420 U.S. 469, 4 91 (1975) (“Rather than address the broader question whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourte enth Amendments, or to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is

### -16-

appropriate to focus on the narrower interface between press and privacy that this case presents . . . .”).
Although the Supreme Court has declined to reach this issue, we agree with the S eventh Circuit that the Court was not “being coy in Cox o r Florida Star in declining to declare the tort of publicizing intensel y personal facts totall y defunct.” Haynes v. Alfred A. Knopf, Inc. , 8 F.3d 1222, 1232 (7th Cir. 1993). Instead, after reviewing Supreme Cour t precedent and the dec isions of other circuits that have faced the tension betwee n the First Amendment’s protection of free speech and state-la w actions in tort for t he invasion of privacy, we conclude that speech that reveal s truthful and accurate facts about a private individual can , consis tentlywith the First Amendment, be regulated because of it s constitutionally proscribable content. See, e.g. , Gilbert v. Medical Econ

. Co. , 665 F.2d 305, 308 (10th Cir. 1981) (“[D]issemination of non-newsworthy private facts is not protected by the first amendment.”); cf. Haynes , 8 F.3d at 1232 (“The Court must believe that the First Amendment greatl y circumscribes the right even of a private figure to obtain damages for the publication of newsworthy facts about him, even when they are facts of a kind that people want very much to conceal.”). We also hold, however, that such regulation is subject to subst antial limitations. Only in the “extreme case” is it constitutionally permissibl e for a governmental entity to regulate the public disclosure of facts about private individuals. See Gilbert , 665 F.2d at 308. In order to insur e that this form of regulation is limited to the extreme case, courts have imposed four constitutionally mandated restrictions on the regulation of the public disclosure of private facts. The first and most fundamenta l restriction is that such regulation must be viewpoint-neutral. Cf. R.A.V. , 505 U.S. at 384 (“[T]he government may proscribe libel; but

### -17-

it may not make the further content discrimination of proscribing onl y libel critical of the government.” (emphasis in original)).

Second, to censure an individual for the dissemination of facts about a private individual, the facts revealed must no t already be in the public domain. Cf. The Florida Star , 491 U.S. at 541 (holding that a newspaper could not be held liable for publishing the name of a rape victim which it had lawfully obtained from a publicly released police report because “wher e a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, o nly when narrowly tailored to a state interest o f the highest order”); Cox , 420 U.S. at 491 (holding that the State may not “impose sanctions on the accurate publication of th e
name of a rape victim obtained from public records--more specifically, fro m judici al records which are maintained in connection with a publi c prosecution and which themselves are open to public inspection ” notwithstanding the desire of the victim’s famil y to prevent disclosure of the victim’s name). Third, the facts revealed about the otherwise private individua l must not be the subject of legitimate public interest. See Time Inc. v. Hill , 385 U.S. 374, 388 (1967) (“The guarantees for sp eech and press are not the preserve of political expression or comment uponpublic affairs, essential

as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of publ ished matter which exposes persons to public vie w, both private citizens and public officials. . . . Freedomof discussion, if it would fulfill its historic function in this nati on, must embrace all issues about which information is needed o r appropriate to enable the members of society to cope with the exigencies of their period.” (citations and quotations omitted)); Haynes , 8 F.3d at 1232 (“People who do not desire the

### -18-

limelight and do not deliberately choose a way of life or course of conduc t calculated to thrust them into it nevertheless have no legal right t o extinguish it if the experiences that have befallen them are newsworthy,
even if they would prefer that those experiences be kept private.”) ; Gilbert , 665 F.2d at 308 (“[T]he first amendment protects the publication of private facts that are ‘newsworthy,’ that is, of legitimate concern to the public.”); Campbell v. Seabury Press , 614 F.2d 395, 397 (5th Cir. 1980 ) (per curiam) (The First Amendment privilege for the public disclosure of fa cts “extends to information concerning interesting phases of huma n activit y and embraces all issues about which information is needed o r appropr iate so that individuals may cope with the exigencies of thei r period.”).
Finally, for regulation to be permissible, the facts revealed mus t be highly offensive. See Haynes , 8 F.3d at 1234-35 (noting in a suit for invasion of privacy that “[t]he core . . . of privacy law . . . is th e protec tion of those intimate physical details the publicizing of whic h would not be merely embarrassing and painful but deeply shocking to th e average person subjected to such exposure”); Gil bert , 665 F.2d at 307 (“In attem pting to strike an acceptable balance between [First Amendmen t privile ges and the invasion of privacy], liability may be imposed fo r publicizing matters concerning the private life of another if the matter publicized is the kind that . . . would be highly offensive to a reasonabl e person . . . .” (quotations omitted)); Campbell , 614 F.2d at 397 (“[T]he inquiry in determining the applicability of the [First Amendment] privileg e [o f broadcasting news of public interest concerning private figures ] focuse s on the information disclosed by publication and asks whethe r truthful information of legitimate concern to the public is publicized in a manner that is not highly offensive to a reasonable person.”).

### -19- In sum, absent a compelling state interest, speech that reveal s truthful and accurate facts about a private individual can be regulated,
cons istentlywith the First Amendment, because of its constitutionall y proscribable content only if: (1) any such regulation is viewpoint-neutral ; (2) the facts revealed are not already in the pu blic domain; (3) the facts reveal ed about the otherwise private individual are not a legitimat e subje ct of public interest; and (4) the facts revealed are highl y offensive. Accordingly, to avoid violating an individual’s rights under the First Amendment, governmental regulation of the public disclosure of facts about private individuals must satisfy all four of thes e requirements.
In the present action, based on the record before us, we cannot rule as a matter of law th at all four restrictions have been satisfied. While
we a gree with the magistrate judge that the Committee’s actions wer e viewp oint neutral, see Mem. Op. at 13, genuine issues of material fac t remain with respect to the other three factors.

We cannot determine as a matter of l aw that the information revealed
on Coplin’s show was not already in the public domain because thi s determination is inherently fact-intensive and we do not have the necessar y facts before us. Ind eed, we strongly suspect that the report on Coplin’s sho w that a green truck regularly parks on a Fairfield city street a t midd ayis not private information. Moreover, it is an open questio n whether the sexual pr actices of the Trailer Park Residence occupants were in the pu blic domain. If the neighbors of that residence could readil y view the sexual activity occurring there, it is not inconceivable that the sexual activities were so openly performed that knowledge of thes e activities was already in the public domain.

### -20- We have similar concerns about the remaining factors. Although w e agree that, in most circumstances, holding up the sexual activities of a specific private individual to public ridicule i s not a legitimate concern of p ublic interest and that doing so is highly offensive, the recor d reveals nothing about the identity of the occupants of the residences in questi on. The magistrate judge’s decision implicitly assumes that th e
occ upants of the Trailer Park Residence and the Second Street Residenc e
were private individuals. If these individuals were instead public figure s
or public officials, then the public dissemination of truthful and accurat e facts about them would almost certainly have been protected by the First Amendment. Cf. Garri son v. Louisiana , 379 U.S. 64, 72-73 (1964) (“In any event , where the criticism is of public officials and their conduct o f pub lic business, the interest in private reputation is overborne by th e larger public interes t, secured by the Constitution, in the dissemination of tr uth.”). Because we know nothing of the individual or individual s living at the Trailer Park Residence and nothing of the individual o r indiv iduals living at the Second Street Residence, we cannot rule as a matter of law that the information revealed on Coplin’s show was not a legitimate concern of public interest or that it was highly offensive.

The FPATV

Committee and Council have submitted no evidence that the facts are not already in the public domain, that the facts revealed are no t
a leg itimate concern of public interest, and that the facts are highl y offensive. Indeed, they have not even alleged that these elements hav e been met . As a result, the FPATV Committee and Council have failed t o rebut the presumption that

### In addition, we cannot rule as a matter of law that Copli n 5 

### invaded the privacy of the caller whose alleged masturbationhabits we re ridiculed. The caller was never identified by name or b y address. Coplin and his co-host merely questioned whether th e caller might be “someone on the board.” Fairfield Speaks Tr . (Oct. 24, 199 4) at 12, reprinted in J.A. at 170. There is also n o indication in the record that the caller’s voice was recognizable to Coplin or to members of the viewing audience. Consequently, it is imp ossible to conclude as a matter of law that the privacy o f this individual was invaded in any meaningful sense.
-21- their content-based r egulation of Coplin’s show was invalid. See R.A.V. , 505 U.S. at 382. 5

B.
The magistrate judge also held that, if Coplin’s speech were untrue, it was defamatory and hence could be regulated c onsistently with the First Amendm ent. As defined under Iowa law, “[d]efamation involves th e publication of writte n or oral statements which tend to injure a person’s reputation and good name.” Kerndt v. Rolling Hi lls Nat’l Bank , 558 N.W.2d 410, 418 (Iowa 1997). We agree that defamation of a private individual is
a for m of speech that can be regulated because of its constitutionall y proscribable content. See R.A.V. , 505 U.S. at 383.
However, such regulation must be vie wpoint-neutral. See id. at 383- 84. Moreover, defama tion of a public figure is not a form of speech that

can be regulated because of its content unless there is “clear an d convincing evidence” that the defamatory statement was made “with actual malice, i.e. with knowledge that it was false or with reckless disregard of whether it was false or not.” Masson v. New Yorker Magazine, Inc. , 501 U.S. 49 6, 510 (1991); see also New York Times Co. v. Sullivan , 376 U.S

. 254, 282 (1964).

### Coplin argues on appeal that: (1) the FPA TV Committee and the 6 

### Council must allege and prove a compelling governmental inte rest to prohibit him from using FPATV; (2) Coplin cannot be held lia ble for th e speech of the callers on his show; (3) the First Amendmen t forbids holding speakers liabl e for statements, like the ones made on his s how, that cannot reasonably be taken as factual; (4) th e Cou ncil’s administrative regime for policing speech on FPAT V impermissibly gives political officials unconstrained an d unre viewed authority to censor; (5) the FPATV Committee’s orde r barring Coplin from FPATV is an unconstitutional prior restr aint on speech; and (6) the FPATV Comm ittee’s ban is not narrowly tailored to the limited interest of regulating tortious speech.
-22- Again, from the record before us, we cannot determine as a matter of law whether the individuals held up for scorn were public or privat e figures. The FPATV Committee have neither alleged nor provided an y eviden ce that these individuals are private individuals. Moreover, th e FPATV Committee and t he Council have neither alleged nor presented “clear and convincing” evidence that Coplin knowingly or recklessly defamed any of the individuals ridiculed on his program. As a result, it wa s inappropriate to rule as a matter of law that Coplin’s speech, if false, was constitutionally proscribable defamation.

C.

Even if we could rule as a matter of law that the statements made on Coplin’s show were an invasion of privacy if tru e and defamation if false, summaryjudgment for the FPATV Committee and the Council members woul d still not necessarily be appropriate. Coplin has raised several othe r First Amendment contentions on appeal that may preclude summary judgment. 6 Because we remand for further fact-finding, we need not address any other issue raised here on appeal. See Ashwander v. T ennessee Valley Authority , 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (“The Court will no t anticipate a question of constitutional law in advance of the

### -23-

necessity of deciding it.” (quotations and citations omitted)); see also Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 501 (1985) (“We call to mind two of the cardinal rules governing the fed eral courts: one, never to anticipate a question of constitutional law in a dvance of the necessity of decid ing it; the other never to formulate a rule of constitutional la w broader than is required by the precise facts to which it is to b e applied.” (quotations, citations, and alteration omitted)).

III.
Coplin challenges the magistrate judge’s holding that he is no t entitled as a matter of law to monetary damages under 47 U.S.C. § 555a(a). He argues that the magistrate judge’s decision on this issue wa s proced urallyimproper because the magistrate judge was only supposed t o rule on matters of declaratory and injunctive re lief in the first phase of Copli n’s bifurcated suit. However, because Coplin’s allegations o f monetary d amages and attorney’s fees fail to state a claim upon whic h relief may be granted , any procedural error that the magistrate judge may have committed by ruling that Coplin is not entitled to monetary damages is harmless.
A district court can grant summary judgment sua sponte as long as the “party against whom j udgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgmen t should not be granted.” Madewell v. Downs , 68 F.3d 1030, 1048 (8th Cir. 1995) (quotations and citations omitted). However, even where the party against whom judgment was entered is not notified and is not given a chanc e to respond to a motion to dismiss, this Court can uphold a district court’ s grant of summary judg ment if the losing party has failed to state a claim upon which relief may be granted. See Phelps v.

### -24-

United States Federal Government , 15 F.3d 735, 739 (8th Cir. 1994) (holdin g that, even though the district court granted summary judgment improperly because (1) it failedto notify the habeas petitioner of its intention to treat a motion to dis miss as a motion for summary judgment, (2) it failed to give the petitioner an opportunity to respond to the motion, and (3) th e record did not support summary judgment, any error was harmless because th e petitioner failed to state a claim upon which relief could be granted).

Because § 555a(a) limits Coplin’s potential recovery in this action to dec laratory and injunctive relief, Coplin’s allegations that he i s entitled to monetary damages and attorney’s fees fail to state a claim upo n which relief may be granted. Section 555a(a) provides:

In any court proceeding pending on or initiated after October 5, 1992, involving any claim against a franchising authority or other governmental entity, or any official, member, employee, or agent of such authority or entity, arising from th e regulation of cable service or from a decision of approval or disa pproval with respect to a grant, renewal, transfer, o r amendment of a franchise, any relief, to the extent such relief is required by any other provision of Federal, State, or local law, shall be limited to injunctive relief and declarator y relief.
47 U.S.C. § 555a(a).
Coplin’ s sole argument that § 555a(a) does not bar his recovery o f monetary damages and attorney’s fees is that the actions taken by the FPAT V Committee and the Cou ncil members did not “aris[e] from the regulation of cable service.” Id. Pointing to the legislative history of the Cable Act , he argues that § 555a(a) was intended only to pr event cable operators from

### We also note that, even if we were to reach the legislative 7 

### historyof the Cable Act, it would offer little support fo r Coplin ’s argument. Although Congress was concerned with th e possibility that local authorities would be subject to overw helming monetary damages in suits by cable operators over franchisin g dec isions, see, e.g. , S. Rep. No. 102-92, at 48-50 (1992) , reprinted in1992 U.S.C.C.A.N. , Vol. 4, at 181-83, the legislative history does not suggest that disputes over franchising decisions were the only concern that Congress intended to address in e nacting § 555a(a).
-25- recovering damages for franchising decisions, bu t not to prevent producers of c able shows from recovering damages for the infringement of Firs t Amendment rights. We disagree.

We nee d not interpret the legislative history of the Cable Ac t because its statutory language is clear. See Ratzlaf v. United States , 51 0 U.S. 135, 147-48 (1994) (“[W]e do not resort to legislative history t o cloud a statutory text that is clear.”); Barnhill v. Johnson , 503 U.S. 393 , 401 (1992) (noting that “appeals to legislative history are well taken onl y to resolve ‘statutory ambiguity’”); United States v. Union Elec. Co. , 64 F.3d 1152, 1165 (8th Cir. 1995) (“The task of resolving the dispute over the meaning of a stat ute begins where all such inquiries must begin: with the language of the statute itself. . . . Thus, courts must presume that a legislature says ina statute what it means and means in a statute what it says there.” (quotations, citations, and alteration omitted)).

Under the plain language of the statute, Coplin’s action “aris[es ] from the regulation of cable service.” 47 U.S.C . § 555a(a). At the heart of Coplin’s action is a dispute over the regulation of cable service: he brings an action disputing a governmental entity’s right to regulate the content carried on a public access cable service. As a result, Coplin’s action arises from the regulation of cable service within the meaning of § 555a(a). 7

### -26- IV.

For the foregoing reasons, with respect to Coplin’s claims fo r injunc tive and declaratory relief, we reverse and remand for furthe r proce edings in accordance with this opinion. With respect to th e magistrate judge’s ruling that Coplin is not ent itled to monetary damages, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.