Gertrude Barnstone and Harvey Malyn v. The University of Houston, Kuht-Tv

Fifth Circuit

Gertrude Barnstone and Harvey Malyn v. The University of Houston, Kuht-Tv

660 F.2d 137, 7 Media L. Rep. (BNA) 2185, 50 Rad. Reg. 2d (P & F) 577, 1981 U.S. App. LEXIS 16460

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 30, 1981

Docket81-2011

StatusPublished

Cited by6 cases

This text of 660 F.2d 137 (Gertrude Barnstone and Harvey Malyn v. The University of Houston, Kuht-Tv) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gertrude Barnstone and Harvey Malyn v. The University of Houston, Kuht-Tv, 660 F.2d 137, 7 Media L. Rep. (BNA) 2185, 50 Rad. Reg. 2d (P & F) 577, 1981 U.S. App. LEXIS 16460 (5th Cir. 1981).

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PER CURIAM:

On May 1, 1980, KUHT-TV, a station owned and operated by the University of [138]*138Houston, announced that it would not air the controversial program, “Death of a Princess,” which it had previously scheduled to show on May 12, 1980. Gertrude Barn-stone, a resident of Houston, a subscriber to KUHT-TV, and a regular viewer of its offerings, brought this action seeking to compel the station to air the program. On the morning of May 12, the district court entered a written “temporary restraining order” requiring KUHT-TV to show “Death of a Princess” that evening. 487 F.Supp. 1347 (S.D.Tex.1980). That afternoon, we vacated the order on the condition that the defendants “tape and preserve the program in issue.” No. 80-1527 (5th Cir. May 12, 1980). That evening, the Supreme Court refused to vacate our order. 446 U.S. 1318, 100 S.Ct. 2144, 64 L.Ed.2d 488 (1980) (Powell, Circuit Justice).

After a full trial on the merits, the district court entered an order requiring the station to telecast “Death of a Princess” within thirty days. 514 F.Supp. 670 (S.D. Tex.1980). We stayed that order pending this appeal. No. 81-2011 (Jan. 14, 1981). We now reverse and instruct the district court to dissolve the injunctive relief it granted.

The district court held that KUHT-TV is a “public forum” as that term is used in First Amendment jurisprudence, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,555, 95 S.Ct. 1239,1245, 43 L.Ed.2d 448 (1975), and that therefore it could not deny access to speakers — here, the producers of “Death of a Princess” — who wished to be heard in the public forum, unless its reasons for doing so could withstand the rigorous scrutiny to which “prior restraints” are traditionally subjected. 514 F.Supp. at 689-91. Appellees defend this holding, and they also defend the district court’s order on the ground that KUHT-TV’s decision was based on the political content of the program. Both of these arguments were recently considered and rejected by this court in Muir v. Alabama Educational Television Commission, 656 F.2d 1012, 1020, 1023 (5th Cir: 1981). We are bound by the decision in Muir.

Thus, the judgment of the district court is REVERSED. The district court shall dissolve the injunctive relief and render judgment for appellants.

REVERSED and REMANDED.

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PER CURIAM:

On May 1, 1980, KUHT-TV, a station owned and operated by the University of [138]*138Houston, announced that it would not air the controversial program, “Death of a Princess,” which it had previously scheduled to show on May 12, 1980. Gertrude Barn-stone, a resident of Houston, a subscriber to KUHT-TV, and a regular viewer of its offerings, brought this action seeking to compel the station to air the program. On the morning of May 12, the district court entered a written “temporary restraining order” requiring KUHT-TV to show “Death of a Princess” that evening. 487 F.Supp. 1347 (S.D.Tex.1980). That afternoon, we vacated the order on the condition that the defendants “tape and preserve the program in issue.” No. 80-1527 (5th Cir. May 12, 1980). That evening, the Supreme Court refused to vacate our order. 446 U.S. 1318, 100 S.Ct. 2144, 64 L.Ed.2d 488 (1980) (Powell, Circuit Justice).

After a full trial on the merits, the district court entered an order requiring the station to telecast “Death of a Princess” within thirty days. 514 F.Supp. 670 (S.D. Tex.1980). We stayed that order pending this appeal. No. 81-2011 (Jan. 14, 1981). We now reverse and instruct the district court to dissolve the injunctive relief it granted.

The district court held that KUHT-TV is a “public forum” as that term is used in First Amendment jurisprudence, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,555, 95 S.Ct. 1239,1245, 43 L.Ed.2d 448 (1975), and that therefore it could not deny access to speakers — here, the producers of “Death of a Princess” — who wished to be heard in the public forum, unless its reasons for doing so could withstand the rigorous scrutiny to which “prior restraints” are traditionally subjected. 514 F.Supp. at 689-91. Appellees defend this holding, and they also defend the district court’s order on the ground that KUHT-TV’s decision was based on the political content of the program. Both of these arguments were recently considered and rejected by this court in Muir v. Alabama Educational Television Commission, 656 F.2d 1012, 1020, 1023 (5th Cir: 1981). We are bound by the decision in Muir.

Thus, the judgment of the district court is REVERSED. The district court shall dissolve the injunctive relief and render judgment for appellants.

REVERSED and REMANDED.

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660 F.2d 137, 7 Media L. Rep. (BNA) 2185, 50 Rad. Reg. 2d (P & F) 577, 1981 U.S. App. LEXIS 16460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gertrude-barnstone-and-harvey-malyn-v-the-university-of-houston-kuht-tv-ca5-1981.

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