                     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.
                               ___________
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
court1 granted summary judgment to the FPATV Committee and the Council,
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).




         1
       Following the bifurcation of the proceedings, the parties
agreed, pursuant to 28 U.S.C. § 636(c) (1994), to have the case
tried by a United States Magistrate Judge.

                                           -2-
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,




                                        -3-
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 Elmer-
Dewitt, 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.




                                    -4-
     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.




                                        -5-
     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




                                        -6-
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




                                     -7-
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




                                           -8-
violating his constitutional rights.”   Id.2   In addition, the magistrate
judge ruled that 47




     2
      The magistrate judge apparently concluded that, regardless of
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-
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.3       Because we do not agree that the FPATV Committee
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.




      3
       The FPATV Committee and the Council have not attempted to
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.

                                       -10-
      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




                                          -11-
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


      4
       In addition, the standards that apply to the governmental
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.

                                   -12-
     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




     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.

                                   -13-
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




                                    -14-
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




                                        -15-
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




                                       -16-
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




                                      -17-
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.”).




                                   -18-
        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.




                                             -19-
     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




                                    -20-
their content-based regulation of Coplin’s show was invalid.              See R.A.V.,
                    5
505 U.S. at 382.


                                            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).




       5
      In addition, we cannot rule as a matter of law that Coplin
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-
      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




      6
      Coplin argues on appeal that: (1) the FPATV Committee and the
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-
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.




                                        -23-
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




                                     -24-
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




     7
      We also note that, even if we were to reach the legislative
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-
                                       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.




                                       -26-
