Summary: Judge James Moody ruled that a Tampa public access company has a reasonable chance of success on First Amendment grounds in challenging the city's attempt to "de-fund" public access.
As a result, he issued a preliminary injunction, halting the city from eliminating funding. Speak Up Tampa Bay Public Access TV d/b/a Tampa Bay Community Network v. Board of Hillsborough County Commissioners, 8:02-CV-1762-T-30MSS (M.D.Fla., Nov. 12, 2002).

Facts: A non-profit public access company, managing Tampa's public access center along with several public access producers and a viewer, alleged that Hillsborough County and its Board of Commissioners violated the First Amendment.

Speak Up, April 5, 2002, was notified by the County Attorney that the county considered Speak Up to be in breach of contract and that the county intended to terminate the contract in 90 days unless Speak Up cured the alleged breaches to the county's satisfaction.

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  The county claimed Speak Up failed to enforce policies requiring content advisories and failed to obtain releases from individuals appearing on broadcasts. On July 24, Speak Up proposed to cure the alleged breach by:
• Scheduling adult programming in the latest available time slots;
• Requiring producers to inform Speak Up prior to cablecast of the nature and content of their programming;
• Providing adult content advisories before, during and after all adult programming;
• Providing mandatory training for producers on intellectual property legal issues; and
• Randomly auditing programming for compliance with policies.
  

One week later, the Board voted 4-3 to "de-fund" Speak Up for 2003. Plaintiffs claimed "de-funding" was a pretext for censorship and sought a preliminary injunction.

Decision: The court ruled that the plaintiffs have a reasonable chance of success on the merits regardless of whether heightened scrutiny or the O'Brien balancing test is applied.

Citing Missouri Knight of the Ku Klux Klan v. Kansas City, 723 F.Supp. 1347 (W.D.Mo. 1989), Moody said, "While it may be correct that the constitution does not require the government to fund public access, it is clear that once a public forum is created it may only be eliminated in a manner consistent with the First Amendment."

Second, the Supreme Court has made clear that the motive behind a legislative body's decision must be reviewed by the courts if there is sufficient evidence a discriminatory purpose exists.

In this case, several commissioners complained that the access channel programming was obscene and sought prosecution by the Hillsborough County Attorney. During an election public debate, another commissioner urged that the access group's funding be cut.
The court also determined that the loss of funding would result in irreparable harm to the access group and that the threatened injury outweighed any damage to the city.

Speak Up was originally budgeted to receive $355,444 in 2002 and 2003. When the county eliminated funding, it also voted to lower county taxes used to fund public access and to increase funding for the government access channel by $335,760.