DYNO v SUNY Binghamton, et al. 09-3010 (2d Circuit) - orginally brought for $355.00 and $40.00 service under 42 USC 1983 at NDNY and on demand of NYS AG Cuomo was barred by the 11th Amendment and by sua sponte citation of Blum v Yaretsky, by Tom McAvoy. The 2nd Circuit dismissed my $455.00 appeal prior to briefing as "lacking any arguable basis in law or fact".

My Appellant Brief was due November 23rd. I moved for reconsideration, which was DENIED December 2, 2009 - I just received the order by mail, today, on December 10, 2009

The pertinent part of 42 USC 1983 reads as follows

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress"

WHRW radio is a broadcasting facility owned by SUNY Binghamton - a State Actor under US S Ct rule - who pays a student to manage the facility. The station is operated under an FCC non commercial educational broadcasting license held by and in the name of SUNY Binghamton and FCC regulations governing said license allows persons other than the licensee to broadcast from said facility. I was one of such broadcasters; and under NYS Regulation, the University President is expressly responsible to ensure that station broadcasting policy complies with the law.

Under US S Ct rule in West v Atkins the station General manager as an employee in managing the University station facility and in determining who may broadcast from the facility is a person acting under color of law; but McAvoy claims that the station is an independent private property enterprise like the private nursing homes in Blum v Yaretsky

The Binghamton press along with all local and National media adamantly refuse to report this story. It is one of prima facie censorship at a State University proven beyond any reasonable doubt by irrefutable documentary evidence with right wing Judges willfully intentionally and knowingly annihilating the abilities of people to bring 1st Amendment cases and other civil rights cases in Federal Court. I guess everyone figure we have a Negro President now so civil rights laws and free speech are no longer necessary.

Being a pro se litigant in this Circuit or this State is a farce. NDNY as well as the 2d Circuit refused to allow me to even have my pro se right to amend once of course at any time Soto v Walker et al 44 F.3d 169 citing Branum v Clark 927 F.2d 698, 705

The ACLU long riding the States Rights bandwagon schleps everything off to your local state chapter and the NYCLU (aside from one lawyer) is not interested: they receive considerable sums of money from the parents of a former WHRW "station manager" who was killed in 911 and no one in the media is interested any longer either. I'm beginning to think all of this is about white men loathing the idea of having a Black Governor and want to butter up Andy, so he can win Conservative hearts and minds to take over the Governor's mansion - hey he doesn't even allow shit to be broadcast at 4am on State sponsored radio.

Ok Dyno just the facts ...

The authority of granting and revoking privileges to broadcast from the station facility is referred to as "clearance" and the administration of an annual clearance exam and who has to take it is delegated to the station "General Manger" who receives remuneration for managing the station on behalf of the University

1st - The University was informed in writing of a new broadcasting policy which served to abridge protected speech as an unconstitutional prior restraint, which was as follows

"The Following words are never allowed on the radio: shit, piss, cunt. Cocksucker, motherfucker, fuck, tits and any other appropriate words concerning genitalia”

These words devoid of context are not obscene and if anything might constitute "indecent speech" which is protected under US S Ct rule which are allowed to be broadcast inside of the FCC safe harbor zone of 10 pm to 6am.

On behalf of the University, the President thereof addressed my said notice, and refused to take any action to correct the policy

2nd - My said broadcasting privileges were suspended for allegedly airing material at 4am which contained the phrase "you're not worth shitting on". Campus Security under the command of the "station manager" removed me from the station during a live broadcast. Fellow broadcasters obeying the dictates of the "station manager" affirmed said suspension.

3rd - The University president was informed in writing that I was suspended, refused to restore my privilege and then applied for renewal of the FCC license

4th - And when I returned, after suspension, under a new "station manager" I was banned indefinitely for refusing to sign an express policy statement, in the name of the station, which forbids profanity and indecent speech 24 hours a day - and reads in part as follows:

"A 24 hour ban of obscenities and profanity is in effect at WHRW. The following are examples of obscene and profane material: “Fuck”, “Motherfucker”, “Asshole”, “Shit”, and other words, phrases or material that fit the two definitions as defined by the FCC, the WHRW Program Director or the WHRW General Manager".

The policy redefines obscenity by claiming that "indecent speech" or words devoid of context are obscene. So I sued both under 42 USC 1983.

The NYS AG (Andrew Cuomo, son of Mario) claims that SUNY Binghamton is absolutely immune under the 11th Amendment to the US Const - The University, according to SUNY charter is a corporation with the right to sue and be sued but according to Cuomo she cannot even be enjoined under Ex Parte Young and the court claims sua sponte that the station is a private person (citing private property enterprise case Blum v Yaretsky authored by William Rehnquist) while flagrantly ignoring West v Atkins and in fact the very language of Blum reiterated in West v Atkins which vindicates my case and thus McAvoy refused to make a judicial determination on prior restraint - i.e.,

So to obviate jurisdictional objections and hopefully prevent SUNY Binghamton from being able to flagrantly violate the US Const and never have to pay a cent - I submitted an amended complaint with my FRCP 60(b) motion - I'm entitled to amend once of course, but McAvoy refused claiming he has no jurisdiction of the case once my Notice of Appeal is filed (FRCP 62.1 effective December 2, 2009 the day my motion was DENIED) cf Phillips v Girdich 408 F3d 124 yet recognized the station's appearance for the 1st time after judgment and long after the clerk issued a certificate of default, otherwise without this procedural maneuver the NYS AG would have to defend what the Judge alleges is a private enterprise not acting under color of law.

All i asked the courts to do was tell the University and station that the broadcasting policies are unconstitutional and to enjoin them by prohibitory injunction. But according to the station they have the right to ban these words 24 hours a day - and the Federal Judiciary have granted them a tear streaming standing ovation

At the very least, Public broadcasting is protected under the US Const and indecent and profane speech are likewise protected under the US Const Action for Children’s Television v FCC 59 F 3d 1249.

“Unlike obscenity, indecent speech is protected under the first amendment; it may be regulated only by the least restrictive means necessary to promote a compelling state interest. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989)”.

My continuing exclusion from the station airwaves is action under color of law and even at the very least, the State University as owner and licensee of the facility having opened it to the public, renders this channel capacity as a designated public forum and the "least restriction" rule regarding protected speech still applies. Under the law of the land, the burden is on the University President, through Andy Cuomo, to show a compelling state interest for this continuing abridgment of speech by persons acting under color of law - e.g.,

How does the poetry of Edgar Allen Poe broadcast at 4am create a clear and present danger to NYS? Or ironically a documentary regarding the very Lenny Bruce material which former Gov Pataki pardoned (under 2d Circuit denial).

Adding Lois De Fleur's name to the caption along with "statin manager" acting in their official capacity [see Kroll v University of Illinois (7th Cir) 934 F 2d 904, 907-908] does not change the burden of NYS under the "least restriction" rule and that's the truly disgusting part in all of this, form over substance - the gutlessness of the steel door bullet proof glass magnetometer armed guard government, like all Fascists, too chicken shit to have the integrity and balls to say "Dyno we aren't going to allow you to broadcast these words at any time of the day or night" because then governmental encouragement of censorship is as clear and as obvious as the encouragement of the University as to constitute governmental action in the violation of protected speech

~~~~~~~

Out of cowardice or religious zeal, all media adamantly refuse to report any aspect of this case - So now it's time to raise a $grand for my pamphlet petition and I'm trying to raise money by donations of any size ($5 recommended) to cover filing fees, printing costs for my appeal to the US Supreme Court now that the 2d Circuit flaked for Cuomo and their brother McAvoy;

unfortunately my front porch was about to collapse and I had that repaired for $3000.00. I'm not well off like the Judge, the NYS AG, the board members &c all of whom are getting paid for this, I'm the only one that isn't, otherwise I wouldn't offend you by asking

Or to cover the possibility that the lawyers are going to try to take all of my property to cover the costs of mailing a 2 page letter that says - dismiss this he's a pro se

But to add insult to my injury, this is the only blog service that allows me to post a working Pay Pal donation link, thank you blogspot - all I need now are people to donate and no one has.

I never expected to be met on the one hand with such abject disdain for free speech and on the other with such complete indifference

Well let's see if this link works so that you may donate whatever amt you can, TIA