J. Curtis Herge, Esq. (NCPAC), 89 F.C.C.2d 626 (1982). This action commenced on December 15, 1981.
This count essentially alleges a violation of constitutional rights by federal officers. Accordingly, if this Court has jurisdiction over the count, it arises from the provision governing federal questions, 28 U.S.C. § 1331. For the reasons which follow, this count shall be dismissed.
No constitutional right of the plaintiffs was violated. Plaintiffs have conceded that they have no right to purchase broadcast time. Indeed, the Supreme Court ruled so in CBS v. DNC. Instead, plaintiffs characterize the right at issue as "the right to request access and to have broadcasters make an independent determination of their requests without intimidation or interference by federal officials." Plaintiffs' Opposition of March 17, 1982, at 12. The extent to which defendants' status as "federal officials" is important to this claim is discussed below, in the context of whether defendants acted in the course of their official authority in connection with the matters alleged. Aside from the issue of defendants' status, no constitutional right has been infringed.
None of the statements allegedly made by the political defendants to the broadcasters rise to the level of "intimidation", duress, or threats. Several defendant Members of Congress or their agents allegedly "advised [the broadcasters] not to accept NCPAC's advertisements." Complaint, para. 40; see also id. PP 52, 54. Other defendant Members of Congress are accused of sending broadcasters "written memoranda intended to cause such broadcasters to reject NCPAC advertisements," id. P 45, see also id., P 59. Yet aside from the assertions that these Members of Congress "used the power and prestige of their federal offices to cause the stations to refuse the advertisements," id., P 68, there is no allegation that they even hinted that they would take any retribution should the NCPAC advertisements be aired. Certainly, any truly coercive actions that the Members of Congress could have taken would appear to be beyond their official powers. For example, as they lack executive powers, they could have done nothing to interfere with the broadcasters' licenses. Such powers, of course, are lodged with the FCC. Moreover, to the extent that the alleged warnings to the broadcasters made reference to the possibility that stations could be held liable for defamatory statements made within the NCPAC advertisements, such warnings undoubtedly are not derived from the political defendants' official powers. One does not need to be a Member of Congress to bring a libel action. Finally, the allegations in count II that the broadcasters "manifested an agreement to join in the . . . conspiracy" to keep NCPAC's advertisements off the air, see e.g., id., P 87, belies the assertion that they were "intimidated." On the whole, the statements that the defendant Members of Congress are alleged to have made to the broadcasters are functionally indistinguishable statements that any person could have made to the broadcasters under the protections of the first amendment.
As the Supreme Court noted in CBS v. DNC, in enacting certain provisions of the Communications Act of 1934 "Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations." 412 U.S. at 110, see also 47 U.S.C. § 326 (providing that nothing in the Act may be construed as conferring powers of censorship upon the FCC and prohibiting the promulgation of any regulations interfering with the right of free speech by radio communication). Plaintiffs seek a guarantee that broadcasters be insulated from external information when making their editorial decisions as to what programs they will agree to broadcast for consideration. This would remove reason from discretion and create choice in a vacuum. The result would deny broadcasters their journalistic and intellectual freedom by censoring and/or constricting the information they may receive and rely upon in choosing what they will publish over the airwaves. Moreover, inasmuch as the relief sought by plaintiffs would infringe upon the first amendment right of persons to communicate their views to broadcasters, it likewise would stifle the concomitant right of the broadcasters to listen to that speech. In any case, plaintiffs have suffered no constitutional deprivation by the political defendants' actions. As the communications between the Members of Congress or their agents and the broadcasters were protected by the first amendment, plaintiffs' remedy for any wrongs they believed had been done them thereby was not to stifle others' speech, but to speak up themselves. Throughout, plaintiffs were free to convey to the broadcasters their reasons why the NCPAC advertisements should be broadcast. Since the actions complained of did not violate any constitutional rights of plaintiffs, their complaint states no claim upon which relief can be granted under the equal protection clause of the fifth amendment or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971).
Furthermore, even were it the case that plaintiffs suffered some constitutional harm, the facts alleged in the complaint fail to present sufficient "governmental action" upon which to base a claim under the first and fifth amendments. See Public Utilities Commission v. Pollak, 343 U.S. 451, 462-63, 96 L. Ed. 1068, 72 S. Ct. 813 (1951) (first and fifth amendments restrict only federal government and not private persons). It is not enough that the defendants be "federal officers." It is necessary that the actions complained of be committed by the defendants under color of the authority vested in them as federal officers. See e.g., Payne v. Government of District of Columbia, 182 U.S. App. D.C. 188, 559 F.2d 809, 823 (D.C. Cir. 1977) (Tamm, J., concurring). The alleged actions of communicating with broadcast stations refer to conduct that would have been in the course of the political defendants' activities as candidates for office, rather than as Members of Congress. To decide otherwise would be to create a double standard: while incumbents would be precluded from making inquiries of broadcasters on the ground of "governmental action," non-incumbent candidates would be free to do so. It might well constitute an equal protection violation in that similarly situated persons -- candidates for federal office -- would not have equal rights to freedom of speech with respect to communications with broadcasters. As such, this count can be dismissed for want of subject matter jurisdiction in that no federal question is presented. 28 U.S.C. § 1331.
Here, plaintiffs allege a conspiracy among all of the various defendants to interfere with or deprive them of their constitutional rights to the free exercise of speech (in the advocacy of a candidate's election) and equal protection of the laws, in violation of 42 U.S.C. § 1985(3). That section provides a remedy, in the form of a civil action for damages, for the deprivation of various federal rights.
However, it does not create any rights of itself. Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 376, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). Accordingly, since plaintiffs have suffered no deprivation of federal rights with respect to their underlying claim (i.e., count I), plaintiffs state no claim for relief under the provisions of section 1985(3) concerning equal protection of the laws. Moreover, even were it the case that plaintiffs could establish some kind of federal right with respect to the opportunity to advertise on the airwaves, that would not be enforceable under section 1985(3) in that administrative remedies are available through the FCC. See Novotny, 442 U.S. at 375-378 (employment discrimination not actionable under § 1985(3) because remedy already provided through Title VII of the Civil Rights Act of 1964). Furthermore, as noted above, the alleged actions of the political defendants do not rise to the level of "force, intimidation, or threat," which is a necessary element of a claim under the advocacy and voting provisions of section 1985(3).
Plaintiffs may well also have standing problems. Section 1985(3) among other things prohibits conspiracies designed to intimidate "any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person" as a Presidential or Vice-Presidential elector or a Member of Congress. NCPAC is not a "citizen." Moreover, while plaintiffs Dolan and Ware allege that they are entitled to vote, they do not aver that they are entitled to vote in the election in which the political defendants are or would be candidates. Dolan and Ware list their addresses as, respectively, Virginia and Louisiana; nothing in the alleged conspiracy concerns elections in either of those states.
In view of the above, it is unnecessary to consider the defendants' other arguments in support of their contention that this action should be dismissed, i.e., that section 1985(3) requires an allegation that the defendants acted "under color of state law," which allegation is not present here; that plaintiffs do not constitute part of a class warranting protection from "invidious discrimination" -- an "immutable class" -- and therefore were not intended to be protected by this section; that no "overt act" of the conspiracy has been alleged; and that any intimidation of the broadcasters would confer jurisdiction upon them rather than plaintiffs.
In conclusion, it should be noted that there is no suggestion whatsoever that plaintiffs were denied the right always available to them under the first amendment to thoroughly express their point of view to the broadcasters on the question of whether their advertisements should be aired. Plaintiffs are free to present their case to the broadcasters just as the political defendants are alleged to have done. Their remedy is not money damages but, rather, more speech. See Webster v. Sun Co., 561 F. Supp. 1184, slip op. at 10-11 (D.D.C. 1983).
An Order consistent with the foregoing will issue this date.
Consistent with the Memorandum Opinion issued in this action this date, it is, by the Court, this 6 day of May, 1983,
ORDERED, that the various motions of the defendants to dismiss the cause shall be and hereby are granted, and it is
FURTHER ORDERED, that this cause shall be and hereby is dismissed.