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 parties

1

agreed, pursuant to 28 U.S.C. § 636(c) (1994), to have the case

tried by a United States Magistrate Judge.

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MAGILL, Circuit Judge.

Randy Coplin brought this action under 42 U.S.C. § 1983 (1994)

against the Fairfield Public Access Television Committee (FPATV Committee)

and members of the Fairfield, Iowa City Council (Council) for alleged

violations of Coplin’s rights under the First Amendment and the Cable

Communications Policy Act of 1984, 47 U.S.C. §§ 521-559 (1994 & Supp. I

1995). Coplin seeks injunctive relief, declaratory relief, monetary

damages, and attorney’s fees. The district court bifurcated the

proceedings; the issues on which Coplin sought injunctive and declaratory

relief were to be presented in a bench trial while the monetary damages and

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

court granted summary judgment to the FPATV Committee and the Council,

1

dismissing Coplin’s claims for injunctive and declaratory relief. The

district court also held that 47 U.S.C. § 555a(a) (1994) precludes Coplin

from recovering monetary 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

Council. The primary responsibility of the FPATV Committee is to

supervise, manage, and control the activities of the Fairfield Public

Access Television channel (FPATV). To fulfill its responsibility, the

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) facilities

and cablecasting on Fairfield’s Public Access TV channel are available to

any resident of the City 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 scheduled

talk show entitled Fairfield Speaks that he cablecast over FPATV. The show

featured interviews with community leaders in government, business, and

education 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 for

the content of Coplin’s program.

In 1994, a local newspaper columnist, Marni Mellen, wrote an

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 allegedly pulled up her blouse and exposed her brassiere to the

television camera. In October 1994, the Council and the FPATV Committee

passed a resolution declaring the brassiere incident objectionable, and

Coplin received a formal “Objectionable Content Warning” shortly

thereafter. The letter warned Coplin that “if similar incidents occur in

your future productions[,] you may [be] subject to sanctions by the FPATV

Committee. 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 the warning was thirty days old, Coplin included, on his

October 23, 1994 show, a one hour-long, live call-in segment in which he

invited members of his viewing audience to respond by telephone to the

University of Chicago’s "Sex in America" survey,
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the results of which had recently been published by Time magazine. See

Philip Elmer-Dewitt, Now for the Truth about Americans and Sex, Time, Oct.

17, 1994, at 62, reprinted in J.A. at 192. The segment was co-hosted by

Patti Schneider, a woman 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 sign

warning that “Fairfield is participating in a sex survey, please be

discreet and candid in your responses.” Fairfield Speaks Tr. (Oct. 24,

1995) at 2, reprinted in J.A. at 160. Coplin then turned to the Time

article. Reading a question from the article, Coplin asked viewers if they

had “‘the nagging suspicion that in bedrooms across the country, on kitchen

tables, in limos and other venues too scintillating to mention, other folks

are having more sex, livelier sex and better sex.’” Id. (quoting ElmerDewitt, Now for the Truth about Americans and Sex, at 62, reprinted in J.A.

at 192). He then started taking callers on the air. The calls were

cablecast live with no delay. 

One caller, named Lyle, who claimed to live in a trailer park,

responded to the question by reporting that “I have that suspicion that

other people are having more sex, because my neighbor, I look at their

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 exact

address of his neighbor’s residence (Trailer Park Residence). Id. at 6,

reprinted in J.A. at 164. It was later learned that this residence

actually does exist. During this exchange, Lyle spoke in an accent that

he claimed was Irish, yet he also claimed that he was from Italy. See id.

at 7-8, reprinted in J.A. at 165-66.
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The next caller objected to the content of the segment, arguing that

“this is certainly not in very good taste.” Id. at 11, reprinted in J.A.

at 169. Coplin and his co-host then engaged the caller in a discussion

about the types of programming that he would prefer. After the call was

completed, Coplin and his co-host questioned whether the complaining caller

might 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.” Backyard

conjectured that the complaining caller did not like the segment “cause he

don’t get no sex.” Id. He further suggested that the complaining caller

was “probably doing the five knuckle shuffle on the old fist pump right

now, anyway.” Id.

Several callers later, a man identifying 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 Street in Fairfield. Gordo

opined that “[i]f you live there, you’ll get more sex than you’ll ever

need.” Id. When asked if the sex on Second Street was “premarital sex,

marital sex or extramarital sex,” Gordo responded: “Every kind you can

think of.” Id. at 26, reprinted in J.A. at 184. He then proceeded to

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.
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The final caller claimed that he lived in the same neighborhood as

Lyle, the earlier caller allegedly from Italy who spoke in an Irish brogue.

With Coplin’s encouragement, the final caller confirmed 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 its

regularly scheduled meetings and voted to ban Coplin from producing his

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 taking

disciplinary action because of the content of Coplin’s programs. See

Letter from Lewis Wilson II, Manager of FPATV (Oct. 31, 1994) at 1,

reprinted in J.A. at 201 (barring Coplin from FPATV for “the illegal acts

of: 1. Invasion of personal privacy. 2. Having content which is, libelous,

slanderous, or defamatory either to individuals, families, or

organizations”). On November 3, 1994, Coplin received a letter from

Fairfield City Attorney, John Morrissey, clarifying the October 31 letter.

Morrissey explained that the October 31 letter was only a preliminary

determination and that Coplin had a right to a hearing before the FPATV

Committee under Article V(C)(1) of the FPATV Rules. Letter from John

Morrissey (Nov. 2, 1994) at 1-2, reprinted in J.A. at 211-12.

Coplin appealed the decision on November 10, 1994, and the FPATV

Committee set a hearing for December 1, 1994. At the hearing, Coplin

responded to the FPATV Committee’s allegations. FPATV Committee members

then introduced additional allegations during the latter part of the

meeting, but Coplin was not allowed to respond to these allegations. The

meeting was continued until December 7, 1994, so that the new allegations

could be more fully 
-7-

discussed. Coplin attended the second meeting, but was not allowed to

participate.

The FPATV Committee voted to sanction Coplin for the live call-in

segment. The FPATV Committee sent Coplin a letter informing him that the

FPATV Committee had decided 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 Glocke, Chairman of FPATV Committee (Dec. 19, 1994) at

2, reprinted in J.A. at 302.

Coplin appealed the FPATV Committee’s decision to the City Council,

which heard arguments on Coplin’s appeal. The Council 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 the

district court against the FPATV Committee and the Council, seeking

injunctive 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 (May

22, 1995), reprinted in Jt. Supp. App. at 354. The FPATV Committee and

Council filed a brief in support of their motion, and Coplin responded with

a brief resisting the partial motion to dismiss. The district court denied

the partial motion to dismiss without prejudice. Order (July 3, 1995),

reprinted in Jt. Supp. App. at 373.

The district court then bifurcated the action between the liability

and damages phases. With the agreement of the parties, the district court

ordered that “[t]he first phase of a bifurcated trial, a bench trial

encompassing the issues on which plaintiff
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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 and

declaratory relief. With respect to Coplin’s claims for monetary damages

and attorney’s fees, none of the parties moved for summary judgment or

presented arguments to the magistrate judge. 

The magistrate judge granted summary judgment to the FPATV Committee

and the Council on Coplin’s claims for injunctive and declaratory relief.

In addition to rejecting several other arguments raised by Coplin, the

magistrate judge concluded that “if the statements 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, [Coplin’s] broadcast was an invasion of privacy.” Mem.

Op. at 15 (emphasis in original) (citing Iowa case law). In the

alternative, the magistrate judge concluded that “[i]f the statements were

untrue, then [Coplin’s] broadcast was defamatory.” Id. (emphasis in

original) (citing Iowa case law). The magistrate judge therefore concluded

that “Coplin’s statements broadcast on the ‘Sex Survey’ show were not

constitutionally protected speech and were subject to sanction without
 The magistrate judge apparently concluded that, regardless of 2

whether the statements cablecast on Coplin’s show were true or

false, Coplin committed a state-law tort and that, as a result,

Coplin’s speech was unprotected. We recognize that the United

States Supreme Court has shown a certain degree of deference for

state regulation of tortious speech. See, e.g., Gertz v. Robert

Welch, Inc., 418 U.S. 323, 347 (1974) (holding that, consistent

with the First Amendment, "the States may define for themselves the

appropriate standard of liability for a publisher or broadcaster of

defamatory falsehood injurious to a private individual").

Nevertheless, speech constituting a state-law tort is not

necessarily unprotected speech. As the Supreme Court has made

clear, states may not regulate speech merely because the speech is

defined as a state-law tort. See, e.g., New York Times Co. v.

Sullivan, 376 U.S. 254, 283 (1964) (holding that “the Constitution

delimits a State’s power to award damages for libel in actions

brought by public officials against critics of their official

conduct”).

-9-

violating his constitutional rights.” Id. In addition, the magistrate

2

judge ruled that 47
 The FPATV Committee and the Council have not attempted to

3

justify the regulation on the basis of the need to protect children

from patently offensive sex-related material. See Denver Area

Educ. Telecom. Consortium, Inc. v. F.C.C., 116 S. Ct. 2374, 2386

(1996) (discussing the permissibility of regulating patently

offensive sex-related material that is easily accessible to

children). Nor does the record indicate the degree to which

Coplin’s show was accessible to children. Accordingly, we do not

reach the issue of whether Coplin’s show could be regulated,

consistently with the First Amendment, in order to protect

children.

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U.S.C. § 555a(a) precludes Coplin from recovering monetary damages and

attorney’s fees in this action. Coplin appeals.

II.

Coplin argues 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

were permissible because Coplin engaged in speech that can be regulated

based on its content. Because we do not agree that the FPATV Committee

3

and the Council are entitled to judgment as a matter of law, we reverse the

district court’s grant of summary judgment and remand for further

proceedings consistent with this decision.
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We review a grant of summary judgment de novo. McCormack v.

Citibank, N.A., 100 F.3d 532, 537 (8th Cir. 1996). Summary judgment is

only appropriate where the record presents “no genuine issue as to any

material 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 was

granted. See McCormack, 100 F.3d at 534.

“The First Amendment generally prevents government from proscribing

speech, or even expressive conduct, because of disapproval of the ideas

expressed. Content-based regulations are presumptively invalid.” R.A.V.

v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted). Thus,

because Coplin was banned from FPATV for the content of his show, the

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 the

content of speech in a few limited areas, which are ‘of such slight social

value as a step to truth that any benefit that may be derived from them is

clearly outweighed by the social interest in order and morality.’” Id. at

382-83 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

Because these limited areas of speech, which include, for example,

obscenity, are of such slight social value, “[they] can, consistently with

the First Amendment, be regulated because of their constitutionally

proscribable content . . . .” Id. at 383 (emphasis in original). 

These categories of speech are not, however, “entirely invisible to

the Constitution, so that they may be made the vehicles for content

discrimination unrelated to their
 In addition, the standards that apply to the governmental

4

regulation of speech ordinarily vary depending on the forum in

which the regulated speech is delivered. Thus, “control over

access to a nonpublic forum can be based on subject matter and

speaker identity so long as the distinctions drawn are reasonable

in light of the purpose served by the forum and are viewpoint

neutral.” Lamb’s Chapel v. Center Moriches Union Free School

Dist., 508 U.S. 384, 392-93 (1993) (quotations, citations, and

alteration omitted). However, to control access to a designated

public forum, the government must be able to show a compelling

governmental interest for its restrictions. See Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).

Because the Council designated that FPATV was “available to

any resident of the City of Fairfield and its surrounding cable

broadcast areas,” FPATV Rule I(A), reprinted in J.A. at 340

(emphasis added), we would ordinarily conclude, under a standard

forum analysis, that FPATV was a designated public forum. However,

the recent decision of a deeply divided Court in Denver Area Educ.

Telecom. Consortium, Inc. v. F.C.C., 116 S. Ct. 2374 (1996), has

cast some doubt on the appropriateness of this analysis. The

Denver Area Court addressed “First Amendment challenges to three

statutory provisions that seek to regulate the broadcasting of

‘patently offensive’ sex-related material on cable television,” 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 through

close judicial scrutiny, thereby enforcing the

Constitution’s constraints, but without imposing judicial

formulae so rigid that they become a straightjacket that

disables Government from responding to serious problems.

This Court, in different contexts, has consistently held

that the Government may directly regulate speech to

address extraordinary problems, where its regulations are

appropriately tailored to resolve those problems without

imposing an unnecessarily great restriction on speech.

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distinctively proscribable content.” Id. at 383-84. Therefore, although

the government can regulate 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 discrimination

of proscribing only libel critical of the government.” (emphasis in

original)).4
Justices Kennedy and Thomas would have us further declare

which, among the many applications of the general

approach that this Court has developed over the years, we

are applying here. But no definitive choice among

competing analogies (broadcast, common carrier,

bookstore) allows us to declare a rigid single standard,

good for 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 industrial 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 the

broad [question] . . . whether public access channels are

a public forum . . . .

Id. at 2385 (citations omitted).

Justice Kennedy, who wrote separately and was joined by

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

plurality’s opinion as “deciding not to decide on a governing

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

analysis that should be applied in the present action, the

plurality’s opinion seems somewhat enigmatic. Nevertheless, after

closely reviewing the structure of FPATV, we hold that the FPATV

Committee and the Council have sufficiently opened FPATV to the

citizens of Fairfield and the surrounding broadcast area that

control over access cannot be based on subject matter or speaker

identity, at least insofar as the speaker is a citizen of Fairfield

or the surrounding broadcast area. Furthermore, we hold that the

FPATV Committee and the Council have neither alleged nor proven

“extraordinary problems,” see id. at 2385, that would justify

barring Coplin from using FPATV.

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In the present action, the magistrate judge concluded that Coplin’s

speech could be regulated on the basis of content if the speech constituted

either an invasion of privacy or defamation. The magistrate judge then

held as a matter of law that the statements made on Coplin’s show were, if

true, an invasion of
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privacy and, if false, defamation. On this basis, the magistrate judge

granted the FPATV Committee’s and Council’s motion for summary judgment.

Because the magistrate judge made no factual findings with respect

to the truthfulness and accuracy of the statements made on Coplin’s

cablecast, the magistrate judge’s grant of summary judgment was dependent

on Coplin’s speech being 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 both (1) that the statements

are a constitutionally proscribable invasion of privacy if true and (2)

that the statements are constitutionally proscribable defamation if false.

If either one of these two prongs of analysis cannot be satisfied, the

FPATV Committee and Council are not entitled to judgment as a matter of

law. Because this Court can reach neither conclusion as a matter of law,

we conclude that summary judgment was inappropriate. Accordingly, we

reverse the district court’s grant of summary judgment.

A.

The magistrate judge held that, if Coplin’s speech were true, it

constituted an invasion of privacy under Iowa law and could therefore be

regulated consistently with the First Amendment. Iowa recognizes an action

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 Stessman

v. American Black Hawk Broad. Co., 416 N.W.2d 685, 686 (Iowa 1987). Under

Iowa law, as relevant here, “‘[t]he right of privacy is invaded by . . .

unreasonable intrusion upon the seclusion of another . . . [or]

unreasonable publicity given to the other’s private life . . . .’” Id.

(quoting
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Restatement (Second) of Torts § 652A(2) (1977)). These actions are subject

to certain limitations, however, that are informed by First Amendment

concerns. See Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289,

297-98 (Iowa 1979). In general, a plaintiff cannot bring an action for an

invasion of privacy if a reasonable person would not find the intrusion

highly offensive, the facts revealed are already in the public domain, or

the matter publicized is a legitimate concern of public interest. See

Stessman, 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 Supreme Court has recognized, there is “tension between the

right which the First Amendment accords to free press, on the one hand, and

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). Yet

neither the Supreme Court nor this Circuit has set forth a general standard

to determine when speech that reveals truthful facts about private

individuals can be regulated, consistently with the First Amendment.

Indeed, the Supreme Court has declined several invitations to do so. See,

e.g., id. at 532 (declining “appellant’s invitation to hold broadly that

truthful publication may never be punished consistent with the First

Amendment” and noting that “[o]ur cases have carefully eschewed reaching

this ultimate question, mindful that the future may bring scenarios which

prudence counsels our not resolving anticipatorily”); Cox Broad. Corp. v.

Cohn, 420 U.S. 469, 491 (1975) (“Rather than address the broader question

whether truthful publications may ever be subjected to civil or criminal

liability consistently with the First and Fourteenth 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 Seventh Circuit that the Court was not “being coy in Cox or

Florida Star in declining to declare the tort of publicizing intensely

personal facts totally defunct.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d

1222, 1232 (7th Cir. 1993). Instead, after reviewing Supreme Court

precedent and the decisions of other circuits that have faced the tension

between the First Amendment’s protection of free speech and state-law

actions in tort for the invasion of privacy, we conclude that speech that

reveals truthful and accurate facts about a private individual can,

consistently with the First Amendment, be regulated because of its

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 greatly

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 substantial

limitations. Only in the “extreme case” is it constitutionally permissible

for a governmental entity to regulate the public disclosure of facts about

private individuals. See Gilbert, 665 F.2d at 308. In order to insure

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 fundamental

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
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it may not make the further content discrimination of proscribing only

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 not 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 “where

a newspaper publishes truthful information which it has lawfully obtained,

punishment may lawfully be imposed, if at all, only when narrowly tailored

to a state interest of the highest order”); Cox, 420 U.S. at 491 (holding

that the State may not “impose sanctions on the accurate publication of the

name of a rape victim obtained from public records--more specifically, from

judicial records which are maintained in connection with a public

prosecution and which themselves are open to public inspection”

notwithstanding the desire of the victim’s family to prevent disclosure of

the victim’s name). 

Third, the facts revealed about the otherwise private individual must

not be the subject of legitimate public interest. See Time Inc. v. Hill,

385 U.S. 374, 388 (1967) (“The guarantees for speech and press are not the

preserve of political expression or comment upon public affairs, essential

as those are to healthy government. One need only pick up any newspaper

or magazine to comprehend the vast range of published matter which exposes

persons to public view, both private citizens and public officials. . . .

Freedom of discussion, if it would fulfill its historic function in this

nation, must embrace all issues about which information is needed or

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
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limelight and do not deliberately choose a way of life or course of conduct

calculated to thrust them into it nevertheless have no legal right to

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

facts “extends to information concerning interesting phases of human

activity and embraces all issues about which information is needed or

appropriate so that individuals may cope with the exigencies of their

period.”). 

Finally, for regulation to be permissible, the facts revealed must

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 the

protection of those intimate physical details the publicizing of which

would not be merely embarrassing and painful but deeply shocking to the

average person subjected to such exposure”); Gilbert, 665 F.2d at 307 (“In

attempting to strike an acceptable balance between [First Amendment

privileges and the invasion of privacy], liability may be imposed for

publicizing matters concerning the private life of another if the matter

publicized is the kind that . . . would be highly offensive to a reasonable

person . . . .” (quotations omitted)); Campbell, 614 F.2d at 397 (“[T]he

inquiry in determining the applicability of the [First Amendment] privilege

[of broadcasting news of public interest concerning private figures]

focuses on the information disclosed by publication and asks whether

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 reveals

truthful and accurate facts about a private individual can be regulated,

consistently with the First Amendment, because of its constitutionally

proscribable content only if: (1) any such regulation is viewpoint-neutral;

(2) the facts revealed are not already in the public domain; (3) the facts

revealed about the otherwise private individual are not a legitimate

subject of public interest; and (4) the facts revealed are highly

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 these

requirements. 

In the present action, based on the record before us, we cannot rule

as a matter of law that all four restrictions have been satisfied. While

we agree with the magistrate judge that the Committee’s actions were

viewpoint neutral, see Mem. Op. at 13, genuine issues of material fact

remain with respect to the other three factors.

We cannot determine as a matter of law that the information revealed

on Coplin’s show was not already in the public domain because this

determination is inherently fact-intensive and we do not have the necessary

facts before us. Indeed, we strongly suspect that the report on Coplin’s

show that a green truck regularly parks on a Fairfield city street at

midday is not private information. Moreover, it is an open question

whether the sexual practices of the Trailer Park Residence occupants were

in the public domain. If the neighbors of that residence could readily

view the sexual activity occurring there, it is not inconceivable that the

sexual activities were so openly performed that knowledge of these

activities was already in the public domain. 
-20-

We have similar concerns about the remaining factors. Although we

agree that, in most circumstances, holding up the sexual activities of a

specific private individual to public ridicule is not a legitimate concern

of public interest and that doing so is highly offensive, the record

reveals nothing about the identity of the occupants of the residences in

question. The magistrate judge’s decision implicitly assumes that the

occupants of the Trailer Park Residence and the Second Street Residence

were private individuals. If these individuals were instead public figures

or public officials, then the public dissemination of truthful and accurate

facts about them would almost certainly have been protected by the First

Amendment. Cf. Garrison v. Louisiana, 379 U.S. 64, 72-73 (1964) (“In any

event, where the criticism is of public officials and their conduct of

public business, the interest in private reputation is overborne by the

larger public interest, secured by the Constitution, in the dissemination

of truth.”). Because we know nothing of the individual or individuals

living at the Trailer Park Residence and nothing of the individual or

individuals 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 not

a legitimate concern of public interest, and that the facts are highly

offensive. Indeed, they have not even alleged that these elements have

been met. As a result, the FPATV Committee and Council have failed to

rebut the presumption that
 In addition, we cannot rule as a matter of law that Coplin

5

invaded the privacy of the caller whose alleged masturbation habits

were ridiculed. The caller was never identified by name or by

address. Coplin and his co-host merely questioned whether the

caller might be “someone on the board.” Fairfield Speaks Tr. (Oct.

24, 1994) at 12, reprinted in J.A. at 170. There is also no

indication in the record that the caller’s voice was recognizable

to Coplin or to members of the viewing audience. Consequently, it

is impossible to conclude as a matter of law that the privacy of

this individual was invaded in any meaningful sense.

-21-

their content-based regulation 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 consistently with the First

Amendment. As defined under Iowa law, “[d]efamation involves the

publication of written or oral statements which tend to injure a person’s

reputation and good name.” Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d

410, 418 (Iowa 1997). We agree that defamation of a private individual is

a form of speech that can be regulated because of its constitutionally

proscribable content. See R.A.V., 505 U.S. at 383. 

However, such regulation must be viewpoint-neutral. See id. at 383-

84. Moreover, defamation of a public figure is not a form of speech that

can be regulated because of its content unless there is “clear and

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. 496, 510 (1991); see also New York Times Co. v. Sullivan, 376 U.S.

254, 282 (1964).
 Coplin argues on appeal that: (1) the FPATV Committee and the 6

Council must allege and prove a compelling governmental interest to

prohibit him from using FPATV; (2) Coplin cannot be held liable for

the speech of the callers on his show; (3) the First Amendment

forbids holding speakers liable for statements, like the ones made

on his show, that cannot reasonably be taken as factual; (4) the

Council’s administrative regime for policing speech on FPATV

impermissibly gives political officials unconstrained and

unreviewed authority to censor; (5) the FPATV Committee’s order

barring Coplin from FPATV is an unconstitutional prior restraint on

speech; and (6) the FPATV Committee’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 private

figures. The FPATV Committee have neither alleged nor provided any

evidence that these individuals are private individuals. Moreover, the

FPATV Committee and the 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 was

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 true and defamation if false,

summary judgment for the FPATV Committee and the Council members would

still not necessarily be appropriate. Coplin has raised several other

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. Tennessee Valley Authority,

297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (“The Court will not

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 federal courts: one, never to

anticipate a question of constitutional law in advance of the necessity of

deciding it; the other never to formulate a rule of constitutional law

broader than is required by the precise facts to which it is to be

applied.” (quotations, citations, and alteration omitted)).

III.

Coplin challenges the magistrate judge’s holding that he is not

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 was

procedurally improper because the magistrate judge was only supposed to

rule on matters of declaratory and injunctive relief in the first phase of

Coplin’s bifurcated suit. However, because Coplin’s allegations of

monetary damages and attorney’s fees fail to state a claim upon which

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 judgment will be entered was given sufficient advance

notice and an adequate opportunity to demonstrate why summary judgment

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 chance

to respond to a motion to dismiss, this Court can uphold a district court’s

grant of summary judgment 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) (holding

that, even though the district court granted summary judgment improperly

because (1) it failed to notify the habeas petitioner of its intention to

treat a motion to dismiss as a motion for summary judgment, (2) it failed

to give the petitioner an opportunity to respond to the motion, and (3) the

record did not support summary judgment, any error was harmless because the

petitioner failed to state a claim upon which relief could be granted).

Because § 555a(a) limits Coplin’s potential recovery in this action

to declaratory and injunctive relief, Coplin’s allegations that he is

entitled to monetary damages and attorney’s fees fail to state a claim upon

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 the

regulation of cable service or from a decision of approval or

disapproval with respect to a grant, renewal, transfer, or

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 declaratory

relief.

47 U.S.C. § 555a(a).

Coplin’s sole argument that § 555a(a) does not bar his recovery of

monetary damages and attorney’s fees is that the actions taken by the FPATV

Committee and the Council 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 prevent cable operators from
 We also note that, even if we were to reach the legislative 7

history of the Cable Act, it would offer little support for

Coplin’s argument. Although Congress was concerned with the

possibility that local authorities would be subject to overwhelming

monetary damages in suits by cable operators over franchising

decisions, see, e.g., S. Rep. No. 102-92, at 48-50 (1992),

reprinted in 1992 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 enacting

§ 555a(a).

-25-

recovering damages for franchising decisions, but not to prevent producers

of cable shows from recovering damages for the infringement of First

Amendment rights. We disagree.

We need not interpret the legislative history of the Cable Act

because its statutory language is clear. See Ratzlaf v. United States, 510

U.S. 135, 147-48 (1994) (“[W]e do not resort to legislative history to

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 only

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 statute begins where all such inquiries must begin: with

the language of the statute itself. . . . Thus, courts must presume that

a legislature says in a 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 for

injunctive and declaratory relief, we reverse and remand for further

proceedings in accordance with this opinion. With respect to the

magistrate judge’s ruling that Coplin is not entitled to monetary damages,

we affirm.

A true copy.

Attest:

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