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March 15, 1968

Madalyn Murray O'HAIR et al., Plaintiffs,
UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: MCGARRAGHY

 The plaintiffs have prayed that this court convene a three-judge District Court according to the statutory provisions of 28 U.S.C. § 2282 and § 2284. The plaintiffs seek a declaratory judgment as to the Communications Act of 1934, as amended, now codified in Title 47 of the United States Code. They specifically allege that Section 47 U.S.C. § 301 which prohibits the use of airwaves for broadcasting purposes except with specific authorization by the Federal Communications Commission effectively restricts and abridges the plaintiffs' freedom of speech and is thereby repugnant to the First Amendment of the Constitution. They further contend that the "Fairness Doctrine" promulgated by the Commission, relating to the availability of air time for controversial issues of public importance, allows the systematic denial of use of the airwaves and it is, therefore, contrary to the precepts of the First Amendment. The plaintiffs also seek injunctive relief from any and all acts of the defendants which may restrict and abridge their freedom of speech.

 It must be stated at this point that the Court is proceeding without the benefit of oral hearing on the issue, since the plaintiffs have elected to proceed solely on their pleadings. The memorandum filed by the plaintiffs in answer to the defendants' motion to dismiss has treated the issues presented very superficially and without any analysis or presentation of the applicable law.

 A motion to dismiss under the Federal Rules is a precise device which tests the legal sufficiency of the complaint and the plaintiffs' material allegations of fact posited in their pleadings must be accepted as admitted. *fn1" The motion challenges not the substance of the material allegations, but essentially states that even if the facts as pleaded are true, no justiciable cause of action is made out. Therefore, prior to discussing the legal principles involved, it will be necessary to first delineate the factual contentions made by the plaintiffs.

 Prior to the filing of the instant suit, the plaintiff, Mrs. Madalyn Murray O'Hair, nee Madalyn Murray, sought air time from various licensees in Honolulu, Hawaii. The record does not indicate whether the request was for free or paid time. She premised this request on the fact that other religious programs were being broadcast by the various licensees and that she should, therefore, be allowed the time to present the opposing view. This request was also predicated upon the basis that the viewpoint which was being promulgated by the plaintiff was a controversial issue of public importance and she should be afforded a reasonable opportunity to present this contrasting viewpoint. The record fails to indicate the responses received from the licensees; however, it is reasonable to infer that the plaintiff's requests were rejected *fn2" since the plaintiff, Mrs. Murray, subsequently filed a complaint with the F.C.C. The members of the Commission, acting upon the information submitted both by the plaintiff and the licensees concluded that the licensees had acted reasonably and in good faith within the dictates of the "Fairness Doctrine". The Commission presented its findings to the plaintiff in a declaratory ruling dated June 2, 1965, which was accompanied by amplifying concurring opinions by Chairman Henry and Commissioner Cox and a dissenting opinion by Commissioner Lovinger.

 The Government brief indicates that the plaintiff, now Mrs. Madalyn Murray O'Hair, did not petition for a court review of the Commission ruling under the then governing judicial review provisions of 5 U.S.C. § 1031 et seq. The claim now presented by the plaintiffs, albeit directed to different parties, and premised on other occurrences, raises essentially the equivalent issue which was previously brought before the Commission.

 The plaintiffs here, however, have shifted their mode of attack, whereas in the previous complaint their challenge was directed against the "Fairness Doctrine", here the attack has zeroed in on the constitutionality of the Communications Act of 1934, as amended. The "Fairness Doctrine" is attacked only on a derivative basis, since it is a product of that Congressional enactment. Due to the constitutional grounds which are raised, the plaintiffs contend that this Court sitting as a sole district judge must grant their request to have a three-judge District Court panel called to pass upon the constitutionality of the Communications Act. The complaint, therefore, launches a constitutional attack upon a federal statute, and prays that its operation be enjoined.

 In order to obtain the proper perspective and focus upon the primary issue to be decided by this Court, it is advisable to consider the function and duties of the sole District Court Judge when a request for the empaneling of a three-judge court is presented to him. The procedure to be followed by the three-judge panel is clearly defined by statutory authority. *fn3" However, the duties of the sole judge, who is making the inquiry as to whether or not to request of the Chief Judge of the Circuit that he empanel a three-judge court, must be gleaned from prior decisions. Like many other areas of our common law, the essential elements have not been clearly defined and the metes and bounds which delineate the procedure to be followed remain evanescent in character and in substance.

 Like any other action which is brought before the Court for adjudication, before any action can be taken on the issue presented, it must determine of first instance whether or not it has jurisdiction. The presence of a request for a three-judge court does not relieve the Court of its responsibility or impair its power to dismiss a complaint when the Court deems that it lacks jurisdiction. *fn4" The single judge District Court must, therefore, determine its jurisdiction at the threshold. The first duty of the sole judge is to pass on the sufficiency of the complaint specifically as to whether or not a justiciable controversy is presented over which he has adjudicatory powers, and if he determines that the Court lacks jurisdiction, he must dismiss the suit.

 If the jurisdictional issue is decided in favor of the plaintiffs, the sole District Court Judge is confronted with the real dilemma of the situation. The dilemma arises when he passes on the substantiality of the constitutional question involved. A single District Court Judge may dismiss a complaint which seeks an injunction restraining the enforcement, operation or execution of any Act of Congress as being unconstitutional, if he decides that a substantial constitutional issue is not raised by the complaint. *fn5" The second duty of the sole District Court Judge is, therefore, to determine the substantiality of the constitutional claim. The term substantial, like any other relative assessment, is one of evanescent character and turns on a matter of degree. This subjective analysis offers no fixed scale against which the substantial characteristic of the constitutional claim can be measured.

 The plaintiffs have based their argument solely on the Idlewild Bon Voyage Liquor Corp. v. Epstein *fn6" decision recently handed down by the Supreme Court. Their argument is grounded on the premise that subsequent to a determination of jurisdiction based on repugnance of a federal statute to the U.S. Constitution, the sole judge cannot determine the substantiality of the constitutional attack. They argue that this determination should be made in the first instance by a three-judge District Court. The gist of their argument boils down to the fact that once the sole District Judge has determined that the District Court has jurisdiction over the issue, he cannot dismiss the complaint on the merits no matter how frivolous the claim of unconstitutionality. *fn7"

 The plaintiffs' position is not supported by the cases and a close reading of the Idlewild decision indicates that the single judge should pass on the substantiality of the constitutional question. In the Idlewild case, the Court stated:

"When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements ...

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