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Lousteau v. City of Canton

United States District Court, Fifth Circuit

October 23, 2013

JERRY LOUSTEAU, Plaintiff,
v.
CITY OF CANTON, MISSISSIPPI, et al., Defendants.

ORDER

DANIEL P. JORDAN, III, District Judge.

This § 1983 case is before the Court on Defendants' Motion for Summary Judgment [138]. According to Plaintiff Jerry Lousteau, the defendants violated his First Amendment right to free speech and his Fourth Amendment right to be free from unlawful seizure. But because the Court concludes that Plaintiff fails to raise factual issues for trial, the motion is granted.

I. Facts and Procedural History

Lousteau has owned and operated the WMGO radio station in Canton, Mississippi, since the mid-1990s. As part of the station's programming, Lousteau broadcasts a "news commentary" Monday through Friday in the 7:00 a.m. hour that repeats at 8:00 a.m., 9:00 a.m., and noon. Lousteau frequently discusses events in Canton, and he regularly attends and reports on meetings of the Mayor and Board of Aldermen. Lousteau is often critical of and insulting to now-former Mayor William Truly, his wife, and Police Chief Vickie McNeil. Lousteau asserts that the City of Canton, Truly, and McNeil "engaged in an ongoing campaign of retaliation" against him for the exercise of his First Amendment rights through his broadcasts. Pl.'s Resp. [143] at 1.

Lousteau's public comments have caused controversy for more than a decade. As early as 1998, when Truly was a Canton Alderman, Truly accused Lousteau of airing racially-divisive content on WMGO, asserting that an attack on Truly was an attack on "the entire African-American community." Second Am. Compl. [35] ¶ 25; see May 21, 1998 Madison County Journal Article [142-11].

These controversies heated up during the 2009 Canton municipal election, when Lousteau ran against Truly for mayor. On May 5, 2009, the day of the election, Lousteau became aware that "there were nine adult absentee ballots cast from" a single home in Canton. Lousteau Dep. [142-13] at 198. The voters "had three different last names, " which aroused Lousteau's suspicion that the voters might be engaged in voter fraud. Id. Lousteau drove by the address and observed an elderly woman in the driveway who turned out to be Ammie Gilkey, Alderman Eric Gilkey's mother. When asked by Lousteau, Ms. Gilkey initially denied that the voters lived at that address, but she then told Lousteau it was "[n]one of [his] business, " and Lousteau left. Id. at 201.

Following Lousteau's encounter with Ms. Gilkey, Alderman Gilkey called then-police chief Robert Winn to complain about Lousteau's conduct. Alderman Gilkey told Winn that he wanted to press charges against Lousteau, and Winn advised him that Ms. Gilkey would have to come to the police station herself "to file the charges." Winn Dep. [138-18] at 7. Winn suggested that Ms. Gilkey should "wait until after that particular day of the election to address the situation." Id. Alderman Gilkey also approached Lousteau at a polling station later that day and said "[t]hat he was going to have [Lousteau] put in jail and [Lousteau] better leave his family alone, and [Lousteau] ain't got no business, you know, sticking [his] nose in [the] election." Lousteau Dep. 196.

Ultimately, on July 18, 2009, Ms. Gilkey filed a criminal affidavit against Lousteau. Alderman Gilkey and one of Ms. Gilkey's daughters accompanied her to the police station to file the charges. On July 20, 2009, the Canton Municipal Court issued a warrant for Lousteau's arrest on a disturbing-the-peace charge. Lousteau self-reported to the police station, was booked, and was released on his own recognizance. Sometime thereafter, Gail Brown, a Deputy Municipal Court Clerk, told Lousteau "we've got you in our court now." Lousteau Dep. 210-11. The charges against Lousteau were ultimately dismissed because Ms. Gilkey failed to appear at Lousteau's trial.

On February 19, 2011, McNeil, Brown, and others handed out fliers encouraging people to stop listening to Lousteau's radio station. McNeil was off duty at the time she passed out the fliers, which were prepared by someone else. The fliers accused Lousteau of "threaten[ing] the very progress that Canton has made by attempting to divide the city racially and economically." Flier [142-7]. The fliers further stated that Lousteau's "ongoing hate speech derails new businesses from wanting to locate in Canton, potentially costing us jobs and commerce, " "devastates existing businesses, costing us a healthy tax base, " and "hurts our schools, lowering the self-esteem of children subjected to his message of hatred and intolerance." Id.

By fall 2011, Lousteau began having run-ins with Truly at Board of Aldermen meetings. For instance, at an October 2011 meeting, Truly "accused [Lousteau] of being the son of the devil and announced that [Truly] was the son of God." Lousteau Dep. 134. At a November 2011 meeting, Lousteau says Truly "suddenly called upon [him] to give an opening prayer." Id. at 256. At a subsequent meeting later that month, Truly announced that a city employee was videotaping the proceedings so that "if anyone lies about the city'... or is not reporting the positive news about the city, ' then the video would be placed on the city's [w]ebsite so that everyone can see the truth." Id. at 254. Following a December 6, 2011 Board of Aldermen meeting, Truly invited members of the public to a meeting in his office concerning garbage fees. Lousteau attempted to attend the meeting but Truly excluded him.

At a February 2012 Board of Aldermen meeting, Lousteau tried to ask the city attorney a question, and Alderman Smith indicated that he wanted to hear what Lousteau had to say. Truly stated that he would not allow Lousteau to speak, and Smith got up from his chair and approached Lousteau. Truly told Smith, "if you want to talk to [Lousteau, ] you're going to take him outdoors." See Notice of Conventional Filing [147], Ex. II. Smith continued to walk toward Lousteau, and Truly instructed a police officer who was present to "remove these-because I'm not going to have you guys disrespecting the Mayor or disrespecting the Board." Id. Smith returned to his seat and Truly continued to threaten to remove Smith.

Lousteau also alleges that he was frequently escorted from the room at the conclusion of Aldermen meetings while others were able to leave at their own pace. Lousteau alleges that, at some point, Truly instructed city employee Lisa Lucas not to talk to Lousteau because he was evil. And Lousteau alleges that Gail Brown frequently verbally assaulted him.

On at least one occasion, Truly announced at an Alderman meeting "that if anyone wanted to file an FCC complaint [against] Mr. Lousteau [Truly] would help them." Truly Dep. [142-3] at 81. In April 2012, Truly himself submitted to the FCC a petition to deny Lousteau's application for license renewal. Truly's city-paid secretary prepared the petition, and Truly gave blank signature pages to two individuals to gather signatures. Truly admits that he put together the petition so that Lousteau "would change his broadcasting format, " "would stop broadcasting information as not in the best interest of the community, " and "will stop simply attacking African-American political leaders." Truly Dep. 92. McNeil told a local pastor about the petition, indicating that she was "getting a petition together to quiet [Lousteau] down." Hunter Dep. [142-2] at 31. That pastor encouraged his parishioners to sign the petition. The FCC denied Truly's petition and renewed Lousteau's license on September 18, 2012.

Finally, in an interview with the Clarion-Ledger in July 2012, Truly stated, "We're monitoring Mr. Lousteau. His news is not in the best interest of the community." Article [142-6]. Truly testified that he meant he ...


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