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Egli v. Chester County Library System

United States District Court, E.D. Pennsylvania

August 12, 2019



          RUFE, J.

         Pro se Plaintiff Christopher Egli filed suit against Defendants Chester County Library System (“CCLS”), Montgomery County Library System (“MCLS”), Pennsylvania Cable Network (“PCN”), National Public Radio (“NPR”), and WHYY, Inc., asserting violations under 42 U.S.C. § 1983, the Civil Rights Act of 1964, the Cable Communications Policy Act of 1984, and the Equality Act of 2010. Defendants have filed motions to dismiss Plaintiff's Complaint, and Plaintiff has filed a motion to add Lower Merion Township to the list of Defendants. Upon consideration of the motions and responses thereto, Defendants' motions to dismiss will be granted, Plaintiff's claims will be dismissed with prejudice and without leave to amend, and Plaintiff's motion to add Lower Merion Township will be dismissed as moot.

         I. BACKGROUND [1]

         In early 2018, Plaintiff published a book titled “The Phantom Ogre; Exploring the Upside-Down World of anti-Semitism.” According to Plaintiff, the book “examines the issue of anti-Semitism, offering ideas and thoughts about its causes and origins” while “simultaneously offering a critique of Judaism.” Plaintiff sought to publicize his book and opinions at local libraries and through other media sources, without success.

         In June and July 2018, Plaintiff allegedly contacted CCLS, which comprises 18 libraries, including Easttown Library. The “Materials Selection Policy” section of its website states that CCLS “strengthens and leverages the power of the public libraries in [its] community to ensure that every resident of Chester County has access to exceptional opportunities to read, learn, create, connect and contribute to a better quality of life.” The Adult Program Coordinator of CCLS initially expressed interest in Plaintiff's presentation and asked for a copy of his book to review, but later emailed him back stating that the book talk does not meet CCLS' programming guidelines and included the following passage:

As with all Library-sponsored events, only those programs that promote and extend the Library's collections, services, goals and mission will be considered. A Library-sponsored program must not promote the services, products, or philosophy of an individual group.

         Plaintiff alleges that this rejection was improperly based on the political content of the book, rather than according to the policy.

         Plaintiff alleges that MCLS engaged similar conduct in rejecting his book and offer to present, which according to Plaintiff, consists of over 25 libraries, including Ludington Library. Despite Plaintiff's admitted inability to locate any specific policies of MCLS, he nonetheless alleges that MCLS cannot “pick and choose which religious views to promote - or exclude, ” particularly when it is publicly funded.

         Plaintiff also alleges that PCN is a Pennsylvania-based television network which offers its programming throughout the Commonwealth in most cable packages. According to Plaintiff, PCN “is funded through subscriber fees paid by participating cable companies, and is regulated under ‘The Cable Act.'” Plaintiff allegedly receives the network in his home through his Xfinity contract, and occasionally watches its “PA Books” program, which “offers one-on-one interviews with authors whose books are ‘of interest to Pennsylvanians.'” Plaintiff wrote to PCN to request that he be featured on its “PA Books” program. PCN's director asked for a copy of Plaintiff's book to review, and a few weeks later, told Plaintiff that PCN was not “interested in interviewing him, adding[] ‘the PA Books series focuses on nonfiction books with a Pennsylvania connection.'” Plaintiff alleges that PCN's decision in declining to interview him on its program reflected a “double standard” in deciding what was related to Pennsylvania, and that PCN simply did not want “to air political content [it] found objectionable.”

         Plaintiff alleges that he regularly listens to NPR, which he states is “partly funded by taxes, and [] regulated by the FCC.” He admits in his Complaint that he has a long history of contacting NPR, “clogging NPR inboxes with emails, tweets, and comments to Management and the Ombudsman.” Although NPR allegedly has broadcast some of his views “on general topics such as regulations, elections, the 2nd amendment, or other issues, ” it has never broadcast his criticisms of Israel. As Plaintiff explains, he submitted “hundreds of comments to NPR throughout 2017 and 2018 criticizing Israel and decrying NPR's coverage of anti-Semitism.” Additionally, after writing his book, he allegedly wrote dozens of emails to two NPR radio shows to appear as a guest, “[n]one of [whom] were interested in discussing or disseminating [his] views.” Such disinterest by NPR, according to Plaintiff, reflects “a policy . . . of stifling free speech where Israel is concerned” and that “NPR excluded his views because they were critical of one particular religion - Judaism - that is regularly accorded preferential treatment in NPR reporting.”

         Finally, Plaintiff brings claims against WHYY, which allegedly airs an interview program called “Radio Times” in Philadelphia and, like NPR, is “partly funded by taxes, and [] regulated by the FCC.” According to Plaintiff, the program “routinely presents Israel in a favorable and sympathetic light, rarely including critics of Israel as guests.” Plaintiff allegedly has written to the program “with some regularity” in the past few years, and although some of his comments have been accepted and sometimes read on air, he alleges that his opinions about Israel have always been screened by someone who told him that his “phone connection was bad, or put him on hold till the program was over.” Additionally, after announcing the publication of his book and his desire to become a guest on WHYY's program, he received no reply from WHYY, which he attributes to “policies favoring Israel.”


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's “plain statement” lacks enough substance to demonstrate that he is entitled to relief.[2] In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.[3] As Plaintiff is proceeding pro se, the Court “must liberally construe his pleadings.”[4]

         Courts are not, however, bound to accept as true legal conclusions framed as factual allegations.[5] Something more than a mere possibility of a claim must be alleged; a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”[6] The complaint must set forth “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.”[7] Deciding a motion to dismiss, courts may consider “only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”[8]


         A. Section 1983 Claims and the First Amendment

         Plaintiff brings claims under 42 U.S.C. § 1983 against Defendants based on violations of his First Amendment rights. Section 1983 is not a source of substantive rights, but a means of vindicating violations of federal constitutional and statutory rights committed by state actors.[9]To state such a claim, a plaintiff therefore must allege (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law.[10]

         1. Library Defendants: CCLS and MCLS

         Municipalities and other bodies of local government are considered to be “persons” within the meaning of § 1983, and can be sued for damages under the statute.[11] As Plaintiff has alleged that CCLS and MCLS comprise public libraries, which are “funded through taxes on the residents of their respective counties, ”[12] and as these Defendants have not at this stage argued otherwise, they will be treated as municipalities and therefore state actors for purposes of their motions to dismiss.[13]

         Even assuming that CCLS and MCLS are state actors, however, Plaintiff also must allege a constitutional injury that was caused when the municipality acted pursuant to a custom or policy.[14] There cannot be redress under § 1983, particularly where a custom or policy is at issue, without establishing an underlying violation of a federal constitutional or statutory right.[15]Plaintiff asserts that his constitutional injury stems from an improper content-based rejection of his offer to provide his book and present on it at libraries in violation of the First Amendment.[16]Thus, Plaintiff does not argue that he has been denied access to the libraries' facilities, but that the library has not made his book available to other patrons.[17]

         Libraries have broad discretion in determining the content of their collections. As the Supreme Court's plurality decision in United States v. American Library Association[18] (“ALA”) held in the context of content-based internet filtering, library internet access is “no more than a technological extension of the book stack, ”[19] and public libraries require and merit “broad discretion” to make content-based decisions in collection and internet management since their purpose is to offer selective access of information to the public.[20]

         CCLS and MCLS, according to the allegations of the Complaint, exercised that discretion here. Plaintiff cannot allege a claim associated with a library's rejection of a particular book. Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have “requisite and appropriate quality” to occupy the limited space available.[21] There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints. He alleges only that his book and proposed talk were not accepted, but as Plaintiff does not have a constitutional right to be included in a library collection, he has failed to state a plausible § 1983 claim against CCLS and MCLS.

         2. Media Defendants: PCN, NPR, and WHYY

         Defendants PCN, NPR, and WHYY argue that the § 1983 claims against them should be dismissed for failure to state a claim because Plaintiff has failed to allege that they are state actors, and Plaintiff has no First Amendment right to be granted airtime by these entities. This Court agrees.

         Section 1983's “color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law.”[22] A private entity may be considered a state actor under limited circumstances, where “there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.”[23] In order to assess whether such entity may be deemed a state actor, three tests apply:

(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.[24]

         Each of these inquiries focuses on whether the government is responsible for the specific conduct alleged by Plaintiff.[25] Determining whether these Defendants are state actors therefore necessitates a fact-based analysis of the allegations in the Complaint.[26]

         The Third Circuit has explicitly held over the last two decades that private entities do not transform into state actors under § 1983 simply because they may receive extensive government regulation and funding.[27] In the context of the First Amendment cases, the Supreme Court has held that extensive government regulation does not transform a private entity into a state actor.[28]Rather, “a private entity can qualify as a state actor in a few limited circumstances- including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.”[29]

         Here, Plaintiff solely alleges that PCN is a Pennsylvania-based television network which “is funded through subscriber fees paid by participating cable companies, and is regulated under ‘The Cable Act.'”[30] Plaintiff also alleges that NPR and WHYY are both “partly funded by taxes, and [] regulated by the FCC.”[31] Plaintiff has not adequately alleged in his Complaint that any of these Defendants “acted under color of state law” when each of them allegedly refused Plaintiff's request to discuss his book and opinions on the air.[32]

         Moreover, even if PCN, NPR, or WHYY could be considered a state actor, Plaintiff's allegations that he has been deprived of his First Amendment rights to appear on their programs are without constitutional merit. The Supreme Court held over 20 years ago that in the context of government-owned and operated media, “the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming.”[33] In ArkansasEducation Television Commission v. Forbes, a public ...

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