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Libertarian National Committee, Inc. v. Holiday

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 29, 2017

DR. TERRY HOLIDAY, et al., Defendants.


          Gregory F. Van, Tatenhove United States District Judge.

         This matter is before the Court on the Motion for Summary Judgment [R. 73] filed by Dr. Terry Holiday. For the reasons stated below, this Court finds there was no First Amendment violation and Defendants are protected by qualified immunity. Accordingly, the Court GRANTS the Defendants' request for summary judgment.



         This case has been pending for over three (3) years, so a detailed analysis of the procedural posture of this case necessarily follows. In October 2014, Kentucky Educational Television (“KET”) hosted the only statewide, televised debate between the two major party candidates for Kentucky's United States Senate seat: Mitch McConnell, a Republican, and Alison Lundergan Grimes, a Democrat. Two weeks before the debate, Plaintiffs Libertarian National Committee, Inc., the Libertarian Party of Kentucky, and David Patterson-then a senatorial candidate representing the Libertarian Party-asked the Court to issue a preliminary injunction requiring KET to include Patterson in the broadcast, insisting that his exclusion would “deprive Plaintiffs of their First Amendment rights.” [R. 4-6 at 9.] In particular, the Plaintiffs alleged that KET's decision to exclude Patterson demonstrated “a clear viewpoint based discriminatory intent.” [R. 4-6 at 6.] On October 11, 2014, following an extensive evidentiary hearing, this Court denied the Plaintiffs' motion. [R. 28.] Upon thorough review of the record, the Court concluded that “KET's actions and discussions were aimed at excluding non-serious candidates, not viewpoints, ” and thus the network's decision to exclude Patterson landed squarely “within the bounds of the First Amendment.” [Id. at 16.]

         In July 2015, the Plaintiffs filed a second suit arising out of the same controversy, but this time they chose a somewhat different tactic-in addition to suing KET's employees in their official capacities, the Plaintiffs also advanced “individual money damage claims” against KET employees pursuant to 42 U.S.C. § 1983. [R. 44 at 2.] The Court subsequently consolidated that new suit with the old one, and all of the claims against the Defendants-in both their official and individual capacities-were incorporated into the Plaintiffs' amended complaint. [R. 41.]

         The Defendants thereafter filed a Motion for Partial Dismissal on the Pleadings. [R. 42-1 at 2.] In it, they asked the Court “to dismiss the new defendants and amended claims and finally adjudicate this case's original, and remaining, pretext and procedural due process claims against the official-capacity defendants.” [Id. at 26.] Specifically, the Defendants sought dismissal of the Plaintiffs' (1) new claims against five of the Defendants in their individual capacities, (2) allegation that “KET's $100, 000 contribution criteria was ipso facto unconstitutional, ” (3) claim that the Defendants' August 15, 2014 deadline for meeting the debate invitation criteria violated Patterson's constitutional rights, and (4) argument that KET's invitation criteria violated the Equal Protection Clause. [Id. at 26-27.]

         This Court granted partial dismissal on February 5, 2016, granting Defendants' motion to dismiss the Plaintiffs' claims against Defendant Bill Goodman in his individual capacity; denying Defendants' motion to dismiss the Plaintiffs' claims against Defendants Hopkins, Clark, Bischoff, and Brower in their individual capacities; and granting summary judgment in favor of the Defendants with respect to the Plaintiffs' claims regarding (1) the $100, 000 invitation criteria, (2) the August 15, 2014 filing deadline, and (3) alleged violations of the Equal Protection Clause.[1] [R. 47 at 22.] Limited discovery as allowed to conduct depositions on Defendants Shae Hopkins, Deidra Clark, Timothy Bischoff, and Mike Brower. [See id.]

         On October 14, 2016, Defendants filed a Motion for Summary Judgment, which is currently before the Court. [R. 73.] On the same day, Plaintiffs filed a Motion to Reconsider the Defendants' Motion to Dismiss and/or in the alternative to amend their Complaint. [R. 83.] This Court denied Plaintiffs' Motion to Reconsider the Defendants' Motion to Dismiss and/or in the alternative to amend their Complaint on September 11, 2017, [R. 98] and now turns to the Motion for Summary Judgment.


         KET has historically invited “any and all candidates who qualified” to be on a ballot to appear in their debates. [R. 73-1 at 2.] KET first considered changing the debate criteria in 2010 and reached out to attorney Todd Gray for advice on how to proceed. [R. 78-1 at 3; R. 73-6.] Deidre Clark stated in her deposition that the reason KET decided to change their debate criteria was to better service the interests of their viewers. [R. 73-3 at 4.] Mike Brower testified to the same [R. 73-4 at 6] and Shae Hopkins emailed the same sentiments to Todd Gray in 2010. [R. 73-6.] However, KET did not move at that time to change the criteria to appear on debates on their station.

         In 2014, KET decided to implement criteria to determine who would be included on the Kentucky Tonight candidate debates and programs. [R. 73-1 at 4.] Executive Director Shae Hopkins delegated this task to Mike Brower, KET's Senior Director for Production Operations, and he worked with Bill Goodman, the host and managing editor of Kentucky Tonight, and Dedire Clark, the show's producer. [R. 73-1 at 5.] Brower again reached out to Todd Gray for advice on how to proceed. He sent an email to Todd Gray with proposed criteria on January 31, 2014, and indicated there was an “eccentric candidate on the ballet who we would prefer to not invite, ” and also indicated the guidelines they came up with were somewhat fluid to not “inadvertently exclude a marginal but potentially viable candidate.” [R. 73-6 at 3.] The Libertarians point to a dictionary definition of eccentric as “a candidate having unusual viewpoints.” [R.87 at 4.] The eccentric candidate KET sought to exclude was perhaps Burrell Farnsley, who Brower testified had on occasion been verbally abusive and physically violent at public political events, Shawna Sterling, or Geoffrey Young. [R. 76 at 25, 26.] Gray responded and sent his own proposed criteria for the debates. [R. 73-6 at 4.] The suggested criteria were that a candidate be: (1) legally qualified; and (2) meet three of the four following criteria: a) have a public position statements on three issues, b) have accepted at least $10, 000 in contributions, c) have received more than incidental press coverage, d) have received 5% or more of support in a survey. [R. 73-6 at 4.] KET accepted Gray's suggested changes, but changed the second criteria to, “meet one [rather than three] of the four following criteria.” [R. 73-1 at 6.]

         Subsequently, Deidre Clark applied the new criteria and sent invitations to the Kentucky Tonight programs covering the 2014 Primaries for U.S. Senate. [R. 73-1 at 6.] She invited all the Republican candidates to a program on April 21, 2014, and all the Democratic candidates to a program on April 28, 2014, and indicated that U.S. Senate general election candidates would be invited to the October 13, 2014, program. [R. 73-11 at 2.] The frontrunners in this election did not participate, but Shawna Sterling did attend, whose “website indicated that one of her goals as a Senator would be to save baby cows, and that angels and music led her to the Senate race.” [R. 73-1 at 7; R. 73-12 at 2.]

         After the Primary Election programs and after McConnell and Grimes won their respective primary elections on May 20, 2014, Brower, Clark, and Goodman met again with the intention to “tighten the criteria for the general election” program. [R. 73-1 at 7.] Clark explained they changed the criteria due to the differences between a primary and a general election, that a “lower bar” of admission to the program would be appropriate in a primary. [R. 73-3 at 15.] She explained that primary fields are more crowded and candidates might have a more difficult time securing high donations or reaching higher polling percentages. [R. 73-3 at 15.] Brower also confirmed that they tightened the criteria to “eliminate nonserious and/or nonviable candidates from participation.” [R. 73-4 at 4.] On May 21, 2014, Shae Hopkins issued public invitations to Senator McConnell and Secretary Grimes to appear together on Kentucky Tonight. [R. 73-1 at 8.] The Libertarians take issue with the fact that KET was very focused on inviting McConnell and Grimes to the Kentucky Tonight program. They state, “Sen. McConnell and Sec. Grimes were the focus of KET's efforts, to the exclusion of every other candidate . . .” [R. 87 at 9.] They cite to an email from Bishoff to Clark, Brower, and Goodman, sent on June 5, 2017, that said, “Please confirm, we did not and will not invite David ...

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