Petition — Frissell v. Rizzo

Supreme Court U.S

FILED

JUN 20 1979

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

-1890

LEE FRISSELL,

oe

Petitioner,

Vv.

FRANK L. RIZZO,

Mayor of the City of Philadelphia,

and

SHELDON L. ALBERT,

City Solicitor of the City of Philadelphia,

and

CITY OF PHILADELPHIA, PENNSYLVANIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT. .

CLETUS P. LYMAN

RICHARD A. ASH

LYMAN & ASH

1612 Latimer Street

Philadelphia, PA 19103

Attorneys for Petitioner

BATAVIA TIMES, APPELLATE COURT PRINTERS ~D

EDWARD ©. SHANNON

CASTERA PENNSYLVANIA REPRESENTATIVE

THE PLAZA, SUITE 237, PHILADELPHIA, PA 18103

PHONE: (218) 568-7763

INDEX.

Page

eee A Uw ek is CRAs che dses se ces’ 2

RE SLO Ga a 2

EE ES ee 2

Constitutional and Statutory Provisions Involved ..... 3

Statement of the Case........ ee aris avis <i. 3

eS a blbs. sce esiee ess tcecene 3

ei ce Uwe ihe 66 cdspetecesecses 4

Be MO Ge Ge FHOCOIIIID 6 onc ce ccc ccc cc eee 5

4. The Decision Below of Which Review Is Sought 5

Reasons for Granting the Writ....................5. 7

I. The Decision Below Is at Variance With the

cee od des a eése veces cee 7

Il. The Question Involved Is of Exceptional Im-

eR Ss és eee sce cersscvese 10

ee Se ROR eos es ond aves scencess 11

APPENDIX:

Opinion of the Court of Appeals ................. Al

Order of the District Court Dismissing the Complaint A18

Plaintiff's Motion for Preliminary Injunction ...... Al9

IES OE PE EET A22

Il.

Page

TABLE OF AUTHORITIES.

CASES CITED:

Coniey v. Gibson, 355 U.S. 41 (1957)... eee e ees 4,9

First National Bank of Boston v. Bellotti, 435 U.S. 765

CRT chs 6 Hee eC bas eis Ree ae Re ncaa ee Aas 7

Gladstone, Realtors v. Village of Bellwood, .... U.S.

0% oy EE A es SOT E CEP EN kct Kee Maku x daebae es 10

Mills v. Alabama, 384 U.S. 214 (1966) .............. 10

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 7,10

U.S. v. Students Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669 (1973) ......... 8,9

CONSTITUTIONAL AND STATUTORY PROVISIONS:

United States Constitution:

SP NE oth re ee ed 3,7,8,10

Fourteenth Amendment, Section |................. 7

MS ML Cee Dina seins ac WEL b's ca Nhe RiGee 8

Be Be TS isp wink cdc Veen keues Okina sbekee bee 2

a ES ooh nn Sb Ana oes caae beak etaea 2,3,8

»

IN THE

Supreme Court of the United States

October Term, 1978

LEE FRISSELL,

Petitioner,

Vv.

FRANK L. RIZZO,

Mayor of the City of Philadelphia,

and

SHELDON L. ALBERT,

City Solicitor of the City of Philadelphia,

and

CITY OF PHILADELPHIA, PENNSYLVANIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Lee Frissell, prays that a writ of certiorari issue

to review the opinion and judgment of the Court of Appeals

for the Third Circuit rendered in these proceedings on

February 20, 1979.

2

Opinions Below

On June 22, 1978, the United States District Court for the

Eastern District of Pennsylvania entered an order dismissing

the complaint, without opinion. This order appears at A18.

On February 20, 1979, the United States Court of Appeals

for the Third Circuit entered judgment, with opinion, af-

firming the order of the District Court. This opinion is as yet

unreported and appears at Al through Al7.

Jurisdiction

The judgment of the Court of Appeals was entered on

February 20, 1979, and rehearing denied on March 23, 1979.

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1254(1).

Question Presented

Does a Philadelphia resident, voter, and taxpayer have

standing to seek injunctive relief under § 1983 of the Civil

Rights Act against official policy denying customary city ad-

vertising to newspapers in reprisal for publication of news ar-

ticles deemed offensive to the mayor—a policy claimed to

chill and inhibit freedom of the press and freedom of ex-

pression in Philadelphia, to his detriment?

3

Constitutional and Statutory Provisions Involved

CONSTITUTION OF THE UNITED STATES

First Amendment

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

42 U.S.C. § 1983

Civil Action for Deprivation of Rights

Every persun who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdic-

tion 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.

Statement of the Case

1. Nature of the Case

This action is brought under the Civil Rights Act, Title 42

U.S.C. § 1983. Plaintiff, a Philadelphia resident, voter, and

taxpayer, contends that defendants, the mayor and the city

solicitor of Philadelphia, have promulgated a policy to deny a

newspaper, The Evening Bulletin (“Bulletin”), customary city

advertising amounting to about $280,000 annually, in reprisal

for the Bulletin’s publication of certain articles deemed of-

fensive by the mayor.

Plaintiff claims that defendants’ policy is chilling and

inhibiting freedom of the press and freedom of expression in

Philadelphia to his detriment.

4

Preliminary and permanent relief is sought enjoining defen-

dants “from denying newspapers customary public ad-

vertising as a reprisal for publication of news articles deemed

offensive by the Mayor; and from taking other reprisals

against the press, in their official capacities (Complaint,

A24).”

2. The Complaint!

The complaint (A22) alleges that the Bulletin, a

newspaper of general circulation published daily in

Philadelphia and one of Philadelphia’s two most widely cir-

culated newspapers, published certain news articles in June,

1978, that the mayor of Philadelphia deemed offensive. In

direct reprisal for the Bulletin’s publication of these articles,

the mayor promulgated a policy whereby the Bulletin is to be

deprived of certain public advertisements customarily run in

this newspaper and paid for out of the public funds, in an

amount totaling about $280,000 annually. The mayor called a

public press conference to announce this policy and its pur-

pose of hurting the Bulletin in its pocketbook. He also said

that he would recommend that the sheriff of Philadelphia

County carry out a similar policy with respect to public ad-

vertising under his control. The city solicitor aided and abet-

ted the mayor in the formulation and promulgation of these

policies. The effect of the mayor’s and city solicitor’s ac-

tivities is to chill and inhibit freedom of the press and

freedom of expression in Philadelphia to the detriment of

plaintiff, a resident, voter, and taxpayer, and other citizens.

‘In.the posture in which the complaint was dismissed, the factual

allegations of the complaint, together with their fair inferences, must be ac-

cepted as true and construed in favor of the pleader. Conley v. Gibson, 355

U.S. 41 (1957).

5

3. Course of the Proceedings

This action was commenced on June 15, 1978. On June 16,

1978, plaintiff moved for a preliminary injunction (A19) to

restrain the defendants from denying newspapers customary

public advertising in reprisal for publication of articles

deemed offensive by the mayor. The court scheduled hearing

on the motion for June 22, 1978. At the commencement of the

June 22, 1978, hearing on preliminary injunction, the trial

judge, sua sponte, raised the question as to whether plaintiff

had standing to bring his action. After hearing argument from

the parties on this issue, the judge ruled from the bench that

the complaint was dismissed since plaintiff had no standing to

bring the action. The hearing was thus concluded without any

evidence being taken although plaintiff was prepared to

present his case with various witnesses he had subpoenaed, in-

cluding reporters that had heard the mayor and the city

solicitor announce the policy at issue. On the same day, the

judge signed a written order, dismissing the action on the

basis that plaintiff had no standing (A18).

Plaintiff appealed to the United States Court of Appeals for

the Third Circuit from the order dismissing the complaint on

June 27, 1978. The appeal was docketed on June 28, 1978,

together with a motion that the appeal be expedited, which

motion was subsequently denied. On February 20, 1979, a

panel of the Court of Appeals entered judgment affirming the

order of the District Court. Appellant’s petition for rehearing

in banc was denied by the court on March 23, 1979.

4. The Decision Below of Which Review Is Sought

In affirming the order of the District Court, the Court of

Appeals held:

(a) That plaintiff’s allegations that the effect of defen-

dants’ activities is to chill and inhibit freedom of the press

6

and freedom of expression in Philadelphia, to his detriment

as a Philadelphia citizen and voter, did not provide him a

basis for standing because the consequence of a rule which

granted standing to every member of the general public

whenever the First Amendment was violated in a manner that

remotely tended to chill public debate, would stray ‘too close

to permitting standing to vindicate an abstract interest in the

legality of government conduct (Opinion, A8-A9).”

(b) That if plaintiff’s complaint was read as alleging in-

jury to a protected relationship with the Bulletin, there was

still no basis for standing because the Bulletin, which was the

“best plaintiff” to bring the action, had taken no position in

the litigation and there was no showing that there was any

genuine obstacle barring the Bulletin from bringing suit in its

own right (Opinion A12-A1]15).

(c) That plaintiff's capacity as a municipal taxpayer

does not provide a basis for standing, even though he might

have standing to bring an action under state law, because

standing to sue in a federal! trial court is determined by

federal law and a municipal taxpayer has standing in federal

court “only to challenge expenditures in violation of those

constitutional provisions which are recognized as specific

limitations upon state power to tax and spend” and that plain-

tiff “alleged no conduct in violation of a specific con-

stitutional limitation on the spending power (Opinion A15-

Al7).”

:

REASONS FOR GRANTING THE WRIT

I. The Decision Below Is at Variance With the

Decisions of This Court.

The lower court erred in denying plaintiff standing to bring

this action in his capacity as a resident and voter of

Philadelphia whose interests in a free market place of ideas in

the Philadelphia community, protected under the First

Amendment, were directly affected by the challenged official

conduct.

A major purpose of the First Amendment? to the Con-

stitution of the United States, made applicable to the states by

Amendment XIV, Section 1, the “Due Process” clause, was to

protect the citizen’s right to receive information uninhibited

by governmental censorship.

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390

(1969), this Court said:

“* *(S)peech concerning public affairs is more than self-

expression; it is the essence of self-government’

(citations omitted). It is the right of the public to receive

suitable access to social, political, esthetic, moral, and

other ideas and experiences which is crucial here (em-

phasis supplied).”

In First National Bank of Boston v. Bellotti, 435 U.S. 765

(1978), this Court found unconstitutional a state statute which

prohibited corporate free speech in connection with

referenda subject to popular vote. The court’s decision rested

on the right of the public to be informed. This Court observed

that the lower court erred in analyzing the case in terms of the

extent of First Amendment rights of corporations (435 U.S. at

775-776). Noting (at 776-777) that “there is practically univer-

* Congress shall make nc law . . . abridging the freedom of speech, or of

the press, .. .”

8

sal agreement that a major purpose of (the First) Amendment

was to protect the free discussion of governmental affairs,”

this Court said (at 783) that its recent commercial speech cases

“illustrate that the First Amendment goes beyond protection

of the press and the self-expression of individuals to prohibit

government from limiting the stock of information from

which members of the public may draw.”

The decision in U.S. v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669 (1973), is directly

on point and controlling in according standing to plaintiff

under the circumstances. In SCRAP, this Court upheld stand-

ing of plaintiffs* to challenge railroad rate increases on the

basis of allegations that they were users of forests, rivers,

streams, mountains and other natural resources surrounding

the Washington metropolitan area and that the rate increases

would have an adverse environmental impact on these natural

resources, to their detriment, since they would discourage the

use of recyclable materials, resulting in more refuse that

might be discarded in national parks in the Washington area,

and in the need to use more natural resources to provide

goods, some of which resources might be taken from the

Washington area. In this case, plaintiff has standing to com-

plain of impact upon the informational environment in his

community by official action.

In denying the plaintiff’s standing, the decision of the

Court of Appeals vitiates his claim of injury by saying:

* under the Administrative Procedure Act, 5 U.S.C. § 702, which provides:

“A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”

Compare 42 U.S.C. § 1983, under which plaintiff seeks redress here.

9

»

“But it does not follow that because the First Amendment

protects widespread public debate, every member of the

general public suffers injury whenever the First Amend-

meni is violated in a manner that remotely tends to chill

that debate (A8).”

But plaintiff specifically alleges that the challenged official

conduct will chill and inhibit freedom of the press and

freedom of expression in Philadelphia to his detriment, and

in reviewing a dismissal on the pleadings, all of the material

allegations of the complaint must be accepted as true and

construed in favor of the complaining party. Conley v. Gib-

son, 355 U.S. 41 (1957). In SCRAP, which involved a far more

attenuated line of causation to the eventual injury of which

the plaintiffs complained than in this case, this Court rejected

denial of standing in the light of allegations of a causal con-

nection between the complained of conduct and the harm to

plaintiffs (412 U.S. at 689-691).

There is nothing tenuous about plaintiff’s claim of injury

from the challenged official policy, which employs sub-

stantial public advertising funds in a manner specifically

designed to intimidate the city’s press. Newspapers and other

media from whom advertising is being withheld, including

the Bulletin, will be moved tc curry the favor of the mayor in

order to obtain advertising in the future. Newspapers and

other media that enjoy advertising will wish to curry favor in

order to continue to enjoy advertising and will wish to avoid

incurring disfavor in order to avoid the sanction of withheld

advertising.‘ Plaintiff, who relies on the stock of information

available to the public from a free and vigorous press, is

being caused damage by this chilled environment. Contrary to

the Court of Appeals analysis, petitioner does not here seek

“to vindicate an abstract interest in the legality of government

* The advertising must be published in some city newspaper.

10

conduct,” but seeks to protect his rights to a free and vigorous

press directly accorded to him under the First Amendment to

the United States Constitution.

In Gladstone, Realtors v. Village of Bellwood, .... U.S.

...+5 47 U.S.L.W. 4377 (decided April 17, 1979) this Court

upheld standing of residents of a community to complain of

racial steering of real estate purchasers in their community,

on the basis that the resulting transformation of their neigh-

borhood from an integrated to a predominantly Negro com-

munity was depriving them of “the social and professional

benefits of living in an integrated society.” Here, plaintiff has

standing to complain both of the detriment to him in being

deprived of access to a free and vigorous press and the fur-

ther detriment of being deprived of the social, professional,

political, and other benefits of living in an informed com-

munity whose other members had access to a free and

vigorous press.

Il. The Question Involved Is of Exceptional Im-

portance.

It is fundamental that free speech concerning public affairs

is the essence of self-government and meaningful democracy.

Red Lion Broadcasting Co. v. FCC, supra; Mills v. Alabama, 384

U.S. 214 (1966). In Mills, this Court said (at 218-219):

Whatever differences may exist about interpretations of

the First Amendment, there is practically universal

agreement that a major purpose of that Amendment was

to protect the free discussion of governmental affairs.

This of course includes discussions of candidates, struc-

tures and forms of government, the manner in which

government is operated or should be operated, and all

such matters relating to political processes.

The decision below, which precludes citizens from seeking

redress from official policy designed to control the com-

munity’s press, seriously undermines the constitutional plan

of protection of free discussion of governmental affairs

necessary to proper self-government and meaningful

democracy. The decision below merits the most careful

scrutiny of this Court.

Conclusion

For the reasons set forth above, it is respectfully submitted

that this petition for certiorari should be granted to review

the opinion and judgment of the Court of Appeals.

Respectfully submitted,

CLETUS P. LYMAN,

RICHARD A. ASH,

LYMAN & ASH,

1612 Latimer Street,

Philadelphia, PA 19103,

Attorneys for Petitioner.

APPENDIX.

Opinion of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For tHe Tuirp Circuit

No. 78-1863

LEE FRISSELL,

Appellant

Vv.

FRANK L. RIZZO,

Mayor of the City of Philadelphia

and

SHELDON L. ALBERT,

City Solicitor of the City of Philadelphia

and

CITY OF PHILADELPHIA, PENNSYLVANIA

AppeaL From tue Unrrep States District Court ror THE

Eastern District or PENNSYLVANIA

D.C. Civil No. 78-2019

Argued December 12, 1978

Before: Grssons, Van Dusen and Rosenn, Circuit Judges

(Opinion filed February 20, 1979)

Ricwarp A. Asx

Lyman & Ash

1612 Latimer Street

Philadelphia, Pa. 19103

Attorneys for Appellant

A2

Opinion of the Court of Appeals.

Suetpon L, Apert

City Solicitor

James M. Penny, Jr.

Deputy City Solicitor

Tyter EX, Wren

Assistant City Solicitor

Attorneys for Appellees

OPINION OF THE COURT

Ginpons, Circuit Judge

ty In this civil rights action we consider when, if ever, a

citizen and taxpayer is entitled to bring suit to redress a

First Amendment injury to his relationship with a news-

paper. The district court dismissed the complaint for want

of standing. We conclude that, while in some instances of

First Amendment injury recognition of a newspaper

ieader’s standing might be proper, this case is not one of

them. We therefore affirm.

I. Facts anp Procerepines BeLow

This lawsuit arises out of a dispute between Mayor

Frank Rizzo of Philadelphia and the Philadelphia Evening

Bulletin, a major newspaper in that community. On June

11, 1978, the Bulletin published a report that the Cicy of

Philadelphia had begun negotiations with American Family

Life Assurance Company, an out-of-state insurance firm,

concerning a program of optional cancer insurance for City

employees. The local representative of American Family,

Alfred E. Smith O’Neill, was a leader in the then current

drive to revise the Philadelphia City Charter to permit

Mayor Rizzo to seek a third term of office.

Mayor Rizzo was apparently upset by the Bulletin’s

report. He called the managing editor of the paper and

denounced as false its account of the negotiations. The

Bulletin stood by its story. On Tuesday, June 13, 1978,

A3

Opinion of the Court of Appeals.

the Mayor announced to the press that he had instructed

City officials to withdraw all of the City’s legal advertising

from the Bulletin ‘‘forever—or as long as I’m Mayor.’’

He made it plain that the withdrawal of advertising was a

response to the Bulletin’s story, and was punitive in na-

ture. As he put it: ‘‘You have to hit them in the pocket-

book, where it hurts.’’ The gross value of the advertising

withdrawn is alleged to be $280,000 per annum.

On June 15, appellant Frissell brought this action

under the Civil Rights Act of 1871, 42 U.S.C. § 1983, naming

as defendants the Mayor, the City Solicitor, and the City

itself. The complaint alleged that appellant was a resi-

dent, taxpayer, and registered voter of Philadelphia. It

claimed that the effect of the withdrawal of advertising

from the Bulletin was ‘‘to chill and inhibit freedom of the

press and freedom of expression in the City, to the detri-

ment of plaintiff and other citizens.’’ The relief sought

included preliminary and permanent injunctions barring

the defendants ‘‘from denying newspapers customary pub-

lic advertising as a reprisal for publication of news arti-

cles deemed offensive by the Mayor.’’

At the hearing on the motion for a preliminary injunc-

tion, the district judge, sua sponte, raised the issue of

plaintiff’s standing to bring the action. After hearing

argument, the judge dismissed the complaint for lack of

standing. This appeal followed.

Il. Tue Leoat Issue

Broadly put, the question raised by a dismissal for

want of standing is ‘‘whether the litigant is entitled to

have the court decide the merits’’ of the legal controversy

before it. Warth v. Seldin, 422 U.S. 490, 498 (1975). This

inquiry normally turns not upon ‘‘the fitness for adjudica-

tion ... of the legal questions”’ at issue, but rather on ‘‘the

nature and sufficiency of the litigant’s concern with the

subject matter of the litigation.’?' The Supreme Court

1. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, The Federal Courts

and the Federal System 156 (2d ed. 1973).

AS

Opinion of the Court of Appeals.

has recently followed a two stage analysis of standing.

First, it has required that the claimant demonstrate that

he, himself, has been exposed to some actual or threatened

injury. E.g., Linda R. 8S. v. Richard D., 410 U.S. 614, 617

(1973). This requirement is related to the constitutional

limitation of the judicial power to ‘‘cases and controver-

sies,’’ and reflects the traditional notion that ‘‘Art. IIT

judicial power exists only to redress or otherwise to pro-

tect against injury to the complaining party.’’ Warth v.

Seldin, supra, 422 U.S. at 499. The legislative and coer-

cive powers of an Art. III court are therefore properly

invoked only in aid of that remedial function, not as an

independent justification for the exercise of jurisdiction.

Once the court finds Art. III, or ‘‘pure’’ standing, it

must then determine whether the claim is barred by non-

constitutional, prudential limitations on the exercise of its

jurisdiction. Duke Power Co. v. Carolina Environmental

Study Group, 46 U.S.L.W. 4845, 4848-50 (U.S. June 26,

1978) ; Singleton v. Wulff, 428 U.S. 106, 112 (1976) ; Warth

v. Seldin, supra, 422 U.S. at 498. Where the harm asserted

is ‘‘a ‘generalized grievance’ shared in substantially equal

measure by all or a large class of citizens’’ that fact coun-

sels against the exercise of jurisdiction. E.g., Warth v.

Seldin, supra, 422 U.S. at 499; Schlesinger v. Reservists to

Stop the War, 418 U.S. 208, 220 (1974); United States v.

Richardson, 418 U.S. 166, 176-78 (1974). Closely related to

this prudential standard is the general rule barring, out-

side of a narrowly limited class of cases, suits in which

standing is rested on one’s status as a federal taxpayer.

Frothingham v. Mellon, 262 U.S. 447 (1923); cf. Flast v.

Cohen, 392 U.S. 83, 114 (1968) (Stewart, J. concurring).

And even when a litigant has demonstrated a concrete and

particularized injury to himself, he is usually permitted to

assert only his own legal rights as a ground for decision in

his favor, not those of third parties not before the court.

Warth v. Seldin, supra, 422 U.S. at 499, 514; United States

v. Raimes, 362 U.S. 17 (1960).

A5

Opinion of the Court of Appeals.

Several justifications for these standing rules have

been articulated. One is judicial economy. The federal

courts have an institutional interest in avoiding the costs

of adjudication unless the requested relief is genuinely

needed. The requirement that an injury capable of redress

be pleaded and proved helps to provide that assurance.

Schlesinger v. Reservists to Stop the War, supra, 418 U.S.

at 221. The further requirement that the plaintiff be him-

self hurt is additional evidence that the grievance alleged

is strongly felt and not merely factitions. On a deeper

level, the Court’s standing rules recognize a constitutional

preference for solving social and political problems by

consent. Warth v. Seldin, supra, 422 U.S. at 500; United

States v. Richardson, supra, 418 U.S. at 188-89 (Powell,

J., concurring). Standing rules place the burden on the

person seeking a non-majoritarian, court-imposed solution

to demonstrate the need for judicial intervention.*? These

institutional interests in the avoidance of ephemeral liti-

gation or collision with majoritarian decisions are the pri-

mary justification for standing rules.

A secondary justification for those rules is protection

of the quality of the court’s adjudication of constitutional

issues. In theory, at least, both the requirement that the

constitutional claim be presented by a party with a genuine

stake in the action and the requirement that the complaint

come from the mouth of the person who actually suffered

the illegal injury assure that the court will obtain from the

attorneys in the case a fuller and more accurate account of

the considerations relevant to the decision than it would

* otherwise receive. Baker v. Carr, 369 U.S. 186, 204 (1962) ;

see also, Singleton v. Wulff, supra, 428 U.S. at 114;

Schlesinger v. Reservists to Stop the War, supra, 418 U.S.

at 221. In view of the relatively minor injuries which have

2. Because standing rules are so closely identified with the principle that

unnecessary conflict with the majoritarian branches of government should be

avoided, it would seem to follow that when those branches invite individual

intervention through an express grant of standing, that grant should be recog-

nized, with little concern for either Art. III or prudential barriers to justi-

ciability. Schlesinger v. Reservists to Stop the War, supra, 418 U.S. at 224

n.14 (citing cases).

A6

Opinion of the Court of Appeals.

been held to warrant a grant of standing, it may be doubted

whether in most cases standing rules provide more than

formal assurance of vigor in the litigation. Still, the con-

cern that litigants may, by exaggeration or understate-

ment, distort the interests of those not parties to the suit

is a real and a continuing one.

Of course, the court’s inquiry into the costs of inter-

vention, including the risk of a mistaken adjudication, is

not conducted in a vacuum. A denial of standing, even to

a less-than-ideal claimant, may also impose important costs.

Thus, while standing should not depend upon the ‘‘merits

of the plaintiff’s contention that particular conduct is

illegal,’’ Warth v. Seldin, supra, 422 U.S. at 480; Flast v.

Cohen, 392 U.S. 83, 99 (1968), it often implicates a court’s

belief that a grant of standing to challenge the asserted

illegality is necessary or desirable in order to advance the

constitutional or statutory policies at issue in the litiga-

tion. The Supreme Court has expressly acknowledged the

relevance of substantive policy where the issue is the relaxa-

tion or reinforcement of prudential standing limitations.

Warth v. Seldin, supra, 422 U.S. at 500. In such cases, it

has suggested, the question is whether ‘‘the constitutional

or statutory provision in question implies a right of action

in the plaintiff.’’ Jd. at 50i. The same considerations

must, we think, be considered in the definition of an Art.

III case or controversy. Injury in fact, after all, is not

mentioned in Art. III, and case or controversy is surely

not a self-defining category. The definitional problem is, of

course, minimal when a plaintiff alleges a substantial past

physical or financial injury of a traditional sort. But

where the injury is less tangible, the determination whether

it merits Art. III recognition will necessarily turn on a

court’s view of the sensitivity of the constitutional values

in dispute.

III. Frissetu’s Stanpine

We turn then to the allegations made in Frissell’s com-

plaint. Since it was dismissed on the pleadings we must,

A7

Opinion of the Court of Appeals.

and do, accept as true all material allegations of the com-

plaint, and construe them in favor of the complaining party.

Warth v. Seldin, supra, 422 U.S. at 501; Conley v. Gibson,

355 U.S. 41 (1957).

Contemplating those allegations, we think that an Arti-

cle III injury to the Bulletin has been made out. The type

of financial injury which resulted from the Mayor’s with-

drawal of funding is one with which courts have long been

familiar. The injunction sought would redress that injury

directly and forcefully, and no prudential consideration

would bar the Bulletin from asserting its own injury.

Moreover we assume, without deciding, that were the Bul-

letin to press a suit in its own behalf it could readily estab-

lish that its First Amendment rights have been violated.

The chilling impact of money damages upon legitimate

press activity protected by the First Amendment is a con-

stitutional commonplace. E.g., New York Times v. Sul-

livan, 376 U.S. 254, 277 (1964). It is not hard to appreciate

that the government’s withdrawal of advertising from a

newspaper would have a similar effect. Moreover, al-

though the City’s advertising program is claimed by the

defendants to be within the discretionary authority of the

Mayor, it seems to be settled, at least in the First Amend-

ment area, that ‘‘the government ‘may not deny a benefit

to a person on a basis that infringes his constitutionally

protected interests... .’’’ Elrod v. Burns, 427 U.S. 347,

359 (1976) (plurality opinion), quoting from Perry v.

Sindermamn, 408 U.S. 593, 597 (1972). The Mayor’s with-

drawal of advertising, if aimed, as alleged, at deterring

legitimate press activity, probably would be construed as

falling within this proscription. See also Grosjean v.

American Press Co., 297 U.S. 233, 250 (1935).

But while the Bulletin is well situated to press this

claim, it has not yet seen fit to sue Mayor Rizzo or the City.

And although the paper has apparently been aware of the

instant lawsuit since it was filed more than six months ago,

it has taken no steps to intervene or otherwise assert its

A8

Opinion of the Court of Appeals.

own interests either in the district court or on appeal. In-

deed, both Frisseli and the defendants are in agreement

that the Bulletin has throughout ‘‘taken no position’’ re-

garding the outcome of his lawsuit. Thus, we must con-

sider whether, in the absence of any action by the Bulletin,

Frissell is entitled to seek relief on the Bulletin’s behalf.

Frissell alleges two theories to support that entitlement:

(1) that he is a member of the public with standing to pro-

tect ‘‘the free flow of information in the Philadelphia com-

munity’’; (2) that as a taxpayer he has standing under

Pennsylvania and federal law to halt the illicit manipula-

tion of government funding for objects violative of the

First Amendment. We find both of these theories unper-

suasive.

A.

Frissell alleges that he has been injured because the

effect of the withdrawal of advertising is ‘‘to chill and

inhibit freedom of the press and freedom of association’’

in Philadelphia. He points out that the Supreme Court

has recognized that the First Amendment protects ‘an

uninhibited marketplace of ideas in which truth will ulti-

mately prevail.’’ Plaintiff’s Brief at 7; see Elrod v. Burns,

427 U.S. 347, 357 (1976) (plurality opinion); Abrams v.

United States, 250 U.S. 616, 630 (1919) (Holmes, J., dis-

senting). But it does not follow that because the First

Amendment protects widespread public debate, every mem-

ber of the general public suffers injury whenever the First

Amendment is violated in a manner that remotely tends to

chill that debate. The consequence of such a rule would

be to make virtually all First Amendment violations sub-

ject to instant legal challenge despite the absence of any

concrete impingement upon the personal interests of the

challenger. Schlesinger v. Reservists to Stop the War,

supra, 418 U.S. 223. Such an expansive definition of legally

cognizable injury under the First Amendment strays too

close to permitting standing to vindicate an abstract in-

A9

Opinion of the Court of Appeals.

terest in the legality of government conduct, and we there-

fore reject it.

More persuasively, Frissell points to cases recognizing

the First Amendment right of ‘‘hearers’’ to challenge re-

strictions placed upon persons whom they wish to hear.

£.9., Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council Inc., 425 U.S. 748, 756-57 (1976) ; Klein-

dienst v. Mandel, 408 U.S. 753, 762-65 (1972); Lamont v.

Postmaster General, 381 U.S. 301 (1965).2 In all of these

cases, persons whose access to information was barred by

restraints upon the speaker were permitted to assert their

own “‘right to hear’’ as a ground for invalidating those

restraints.

We agree with Frissell that the rationale of these

cases might, in an appropriate case, support the conclusion

that a would-be hearer suffers Art. III injury from a mone-

tary sanction aimed at deterring a speaker from commu-

nication protected by the First Amendment. The inhibiting

effect of such sanctions is recognized. New York Times v.

Sullivan, supra. Moreover, the concrete impact of a dis-

crete sanction directed at a specific relationship differs

fundamentally from the ‘‘subjective ‘chill,’ ’’ resulting

from the ‘‘mere existence’’ of a government program that

was held insufficient to establish injury in fact in Laird v.

Tatum, 408 U.S. 1, 13-14 (1972). On the contrary, that

impact would constitute a ‘‘specific present objective

harm,’’ id. at 14, te a relationship protected under the

First Amendment. For similar reasons, we doubt that the

holding in Warth v. Seldin, 422 U.S. 490 (1975), requiring

the pleading of ‘‘but for’’ causation, would be applicable

to a suit founded on a protected speaker-hearer relation-

ship, even in those cases where plaintiff cannot demon-

strate that the speaker has actually been prevented from

speaking by the governmental sanction. The sensitive na-

ture of. First Amendment rights and the difficulty of ob-

_ 3. See also, Procunier v. Martinez, 416 U.S. 396 (1974) (speakers per-

mitted to rely on the rights of hearers); Martin v. Struthers, 319 U.S. 141,

143 (1943) (dictum).

AlO

Opinion of the Court of Appeals.

taining proof of a causal connection might well render such

an inquiry into the speaker’s behavior wholly impracticable

and undesirable. Cf. Herbert v. Lando, 568 F.2d 974, 984

(2d Cir. 1977), cert. granted, 98 S. Ct. 1483 (1978). In any

event, we think a plaintiff who alleged such a chill would

be entitled, before his complaint was dismissed, to dis-

covery for the purpose of determining whether the sanction

in fact had an inhibiting impact.*

We need not decide this difficult issue, however, since

for two reasons appellant’s allegations do not bring him

within the rationale of the right to hear cases. First, it is

apparent that in those cases the hearer asserted an injury

to an interest in a defined relationship with a specific

speaker or speakers.’ For example, in Kleindienst v.

Mandel, supra, the hearers were American professors and

4. Paton v. LaPrade, 524 F.2d 862, 873-74 (3d Cir. 1975), would not

necessarily be controlling in the face of the allegations we suggest would be

needed to support a grant of standing here. In Paton this court affirmed a

district court’s grant of summary judgment, rejecting the standing of a high

school teacher who sought damages and injunctive relief against the FBI on

account of an investigaiion by that agency of a student who had, during the

course of research for a high school project, addressed a letter of inquiry to

an asserted subversive organization. The teacher alleged that the FBI’s action

had infringed his right ot academic freedom.

The Paton court rejected this claim as a basis for standing. The allega-

tion, the court found “might be sufficient to confer standing” at the complaint

stage. On the facts arrayed in support of the motion for summary judgment,

however, the claim failed. These facts showed that the plaintiff did not teach

the course at issue and was not responsible for the student’s mailing of the

letter. These admissions, the court said, made it “difficult to determine how

he was directly injured by defendant's activities.” Moreover, the teacher con-

ceded that the FBI’s activity had had no effect on his educational activities.

The only factual injury asserted against the motion for summary judgment

was the “inhibiting force” of the FBI’s activity. This “subjective chill”, the

court found, was so much like that described in Laird v. Tatum, supra, as to

bar standing on that ground as well.

This case is distinguishable from Paton in two important respects. First,

the case arises on a dismissal of the complaint, rather than a motion for

summary judgment. The detailed assessment of tie nature of the injury

possible on the record in Paton therefore is not possible here, and we must

construe the complaint in favor of the appellant. Second, in the Paton case

the record affirmativeiy disclosed the absence of any relationship between the

injured student and the teacher himself. The plaintiff's allegation was based,

not on the harm to him flowing from the student’s injury, but rather on the

speculative possibility of future injury to other students.

5. In the closely analogous situation where a litigant is seeking to assert

the constitutional rights of a third party, the Suvreme Court has required that

such a relationship be demonstrated. E.g., Singleton v. Wulff, supra, 428

U.S. at 114-115.

All

Opinion of the Court of Appeals.

writers who had invited Mandel, a noted Marxist intellec-

tual, to speak in this country. Mandel had been excluded.

In Lamont, plaintiffs were persons to whom Communist

literature had been addressed from overseas. The Court

found that the postal regulations in issue impeded their

access to those publications. And in Virginia State Board

of Pharmacy, supra, the hearers were consumers seeking

to void Virginia’s ban on price advertising for prescrip-

tion drug advertising. The Supreme Court, sustaining

their right to hear, specifically noted that the parties had

stipulated that ‘‘some pharmacies’’ would publish adver-

a in the absence of the prohibition. 425 U.S. at 756

n.14,

The requirement that the hearer demonstrate injury

to a relationship with an affected speaker is, we think, es-

sential to avoid the kind of broad scale assertion of injury

te an undifferentiated public interest that the appellant’s

initial theory of standing suggests. Exactly how well de-

fined or intimate that relationship must be the cases do not

make clear. The Court’s willingness to accept the broad

allegations of potential consumers in Virginia State Board

of Pharmacy, supra, certainly indicates that a person who

alleged that he was a regular reader of a newspaper might

stand in such a relationship. See also Lamont v. Post-

master General, supra. But Procunier v. Martinez, 416

U.S. 396 (1974), implies that the right to hear might be

limited to persons who have a ‘‘ particularized interest’’

in communicating with the speaker or to ‘‘particular means

of communication in which the interests of both [hearer

and speaker] are inextricably meshed.’’ Jd. at 408-09.

Under such a test, the standing of newspaper readers might

well be in doubt. We need not fully resolve this issue,

however, since the appellant nowhere even alleges that he

_ reads or subscribes to the Bulletin, or that the Bulletin, as

distinct from the Philadelphia press generally, has, in fact,

been silenced or even inhibited on any subject in which he

was interested. In the absence of such allegations, his

claim of personal injury is deficient.

Al2

Opinion of the Court of Appeals.

Even if we were to read Frissell’s complaint as suffi-

ciently alleging injury to a protected relationship with the

Bulletin, however, the cases recognizing the right to hear

suggest a second and more significant prudential reason

why he may not be heard to assert that injury. As a mat-

ter of logic, the right to hear and the right to speak are

‘‘two sides of the same coin.’’ Kleindienst v. Mandel,

supra, 408 U.S. at 775 (Marshall, J., dissenting). The two

rights are not, however, completely coequal: the right to

hear flows from and depends upon the right to speak.

Generally there can be no right to hear what a speaker

does not choose to say.® In most cases, then, the speaker—

not the hearer—will be in a better position both to identify

and weigh precisely the injuries flowing from First Amend-

ment restraints and to present them for judicial redress.

This superior position suggests that the recognition of

standing to assert the right to hear is fundamentally

analogous to a grant of standing to assert the rights of a

third party and ought, perhaps, to be governed by similar

prudential restrictions, including the rule that one may

claim standing to assert the rights of a third party only

upon a showing that some ‘‘genuine obstacle’’ has pre-

vented the third party’s vindication of his own legal rights.

Singleton v. Wulff, supra, 428 U.S. at 116; NAACP v.

Alabama, 357 U.S. 449 (1958) ; Barrows v. Jackson, supra.

See also O’Malley v. Brierly, 477 F.2d 785, 788-89 (3d Cir.

1973). The assumption behind this rule is that, in the

absence of a showing that such an obstacle exists, the third

party has presumably consented to, or does not view him-

self as injured by, the challenged state conduct. Singleton —

v..Wulff, 428 U.S. at 116. In such cases, it may well be

that the thrust or timing of, or choice of forum for, the ac-

tion in which the rights of the third party are raised, con-

flicts importantly with the third party’s underlying interest.

6. Cf., Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)

iolates freedom of the press) ; but cf., Red Lion Broadcasting

fren FCC, 395 US. 367, 389.92 (1969) (upholding FCC's fairness doctrine).

—

Al3

Opinion of the Court of Appeals.

This limitation on third party standing thus enforces a

‘‘best plaintiff’’ rule in order to avoid needless and per-

haps counterproductive litigation. See 13 C. Wright, A.

Miller & E. Cooper, Federal Practice and Procedure § 3531

at 211-12 (1975).

The facts of this case illustrate that the risk of con-

flict of interest may be especially great when a hearer is

granted standing to protect the First Amendment interests

infringed by retaliation aimed at a speaker—particularly

a newspaper speaker. The Bulletin is quite clearly the

preferred plaintiff in this lawsuit. If it has suffered a

direct and substantial financial injury, as a professional

speaker, it has both a powerful incentive to litigate illegal

conduct in violation of its First Amendment rights, and

considerable expertise in doing so. We must assume, in

the absence of any allegation to the contrary, that the Bul-

letin’s decision not to bring suit reflects a considered judg-

ment as to its most advantageous course of action. To

name only one possibility, the Bulletin may well have con-

cluded that in the Philadelphia market its loss of City

advertising marks it as a ‘‘crusading’”’ paper, truly inde-

pendent of the City’s hierarchy, and thus increases its

overall credibility and marketability. In contrast, a

reader’s suit is unlikely to be prosecuted with the full

sophistication of a claim presented by the newspaper and

often may not reflect the paper’s judgment of its most

profitable course of action. The risk of conflict between

media and audience interest is enhanced by the fact that,

as noted above, the newspaper-reader relationship is not

so intimate as to provide strong circumstantial guarantees

of community of interest. There is perhaps a greater

danger that plaintiffs may press such suits for short range

personal or political, rather than long-range institutional

considerations. On the other hand, if it could be shown

that the newspaper itself is somehow disabled or impeded

from pressing its own claim, by fear of future reprisal or

for other reasons, a court might be hard pressed to deny

Al4

Opinion of the Court of Appeals.

the claim of a reader to protect his own interest in the rela-

tionship, and indireetly, the newspaper’s rights, as well."

There is implicit support for approaching the right to

hear as a problem of third party standing in the facts, if

not the express reasoning, of the cases where the Supreme

Court has recognized such a right. Thus both K leindienst

v. Mandel, supra, and Lamont v. Postmaster General,

supra, the potential speakers were foreign nationals living

overseas, who were disabled from protecting the First

Amendment interests at stake by broader general rules

limiting their right to enter this country or to import ma-

terials into it. Sce 408 U.S. at 753; 381 U.S. at 308 (Bren-

nan, J., concurring). In both cases, the only way that the

underlying First Amendment interest could be effectively

vindicated was by a grant of standing to the would be

hearers. While in Virginia State Bd. of Pharmacy v. Vir-

ginia Citizens Consumer Council, Inc., supra, no legal

obstacle prevented pharmacists from vindicating their own

7. This case is distinguishable from those where if the party before the

court is not allowed to press the third party claim, the rights of third parties

will be diluted. See Carey v. Population Services International, 431 U.S. 678,

683 (1977) ; Craig v. Boren, 429 U.S. 190, 192-97 (1976) ; Eisenstadt v. Baird,

405 U.S. 438, -446 (1972). In these cases, vendors of goods or services

were permitted to assert the constitutional rights of potential vendees as a

basis for the invalidation of restrictions on the distribution of their product,

despite the absence of any indication that the customers were disabled from

vindicating their own rights. The rationale for permitting that assertion was

that in each instance the enforcement of the sale restriction against the person

seeking to assert jus tertii would have indirectly burdened the potential pur-

chaser’s exercise of his constitutional rights. See Note, Standing to Assert

Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 431-34 (1974). The alleged

constitutional deprivation to the Bulletin here is not an indirect consequence

of any injury to the plaintiffs, but rather a cause of it. Jd. at 434.

Moreover, in cases like Craig and Carey, the existence of the vendor-

vendee relationship and the fact that the class of potential third party claimants

was large suggested both that the vendor's representation was likely to be

vigorous and well financed, Craig v. Boren, supra, 429 U.S. at 194, and that

if the claim by the vendor were not recognized, a new, repetitious claim by at

least one member of the vendee class would follow thereupon. Id.; 13

C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531 at

212 & Supp. at 41 (1978). In fact, the co-claimant in Craig v. Boren, whose

suit was mooted prior to review in the Supreme Court, was a member of the

class of vendees. In the situation before us, however, these considerations cut

in favor of denying standing. There is here real danger that a newspaper

reader will not adequately represent the Bulletin’s interest. Morcover, if the

plaintiff is not allowed to sue, it is possible that no claim will ever reach

federal court, and if such a claim is presented it is likely to differ significantly

from that presented by this claimant.

- —— —

Al5

Opinion of the Court of Appeals.

First Amendment rights to advertise, the effect of the

Board’s restrictions on a price advertising was to create a

pharmacists’ cartel, sheltered from competition, which

sharply reduced the incentive for any individual pharma-

eist to oppose the regulations. The grant of standing to

consumers to challenge the advertising ban was, under the

circumstances, an appropriate means to vindicate the First

Amendment interests at stake. In sum, it appears to us

that the cases where the Supreme Court has permitted a

hearer to vindicate First Amendment interests are most

appropriately viewed as instances where the ‘‘prudential

considerations’”’ which often bar the assertion of third

party rights were overcome by a demonstrated obstacle to

the speaker's vindication of First Amendment values which

justified implication of a right of action in favor of the

hearer. ye therefore conclude that, even if Art. III in-

jury has been shown in ‘this case, since Frissell has sug-

ie no pepo obstacle’’ which bars the Bulletin from

ringing suit in its own right, his standi indi

right should be denied. : ea

B.

Frissell also argues that he has standing as a municipal

taxpayer to challenge the Mayor’s action. He points out

correctly, that Pennsylvania has recognized the standing

of municipal taxpayers to challenge unlawful expenditure

of government funds. E.g., Price v. Philadelphia Parking

Auth., 422 Pa. 317, 221 A.2d 138 (1966); Loewen v. Sha

piro, 389 Pa. 610, 133 A.2d 525 (1957). Since the Mayor’s

withdrawal of advertising involves a diversion of city funds

alleged to violate the First Amendment,* he argues, he has

standing to halt that withdrawal.

8. It is unclear whether the city’s diversion to other, 1 fund

2 . . , C l

— from the Bulletin is the type of unlawful or caeatiaiay pw

itment of government resources required to support taxpayer standing

woe > bel’ R vg Mad a o% create a ~ of increased city

. Philad. ‘ ng Auth., supra, and L z 7

supra, both suggest that some risk of increased re is rae ei =

Al6

Opinion of the Court of Appeals.

Even if Frissell could claim standing under state law,

we do not think that would help him in this suit, since it

was brought in a federal trial court. There has been con-

siderable dispute whether standing to raise a federal ques-

tion in state court is a matter of federal or state law. See

Flast v. Cohen, 392 U.S. 83, 132 n.22 (Harlan, J., dissent-

ing) (federal); Freund, in E. Cahn, Supreme Court and

Supreme Law 35 (1954); contra, G. Gunther, Constitu-

tional Law 1573-74 (9th ed. 1975). On direct review the

Supreme Court has on occasion considered, although not

without dispute, the merits of cases in which standing was

based on state law rules. Everson v. Bd. of Education,

330 U.S. 1 (1947); Bradfield v. Roberts, 175 U.S. 291

(1899); cf. Richardson v. Ramirez, 418 U.S. 24, 36-40

(1974) (mootness). But see, Doremus v. Bd. of Education,

342 U.S. 429 (1952) ; Tileston v. Ullman, 318 U.S. 44 (1943).

In a federal trial court, however, standing to sue is deter-

mined by federal law. Baker v. Carr, supra, 369 U.S. at

204.

Petitioner’s reliance on Flast v. Cohen, 392 U.S. 83

(1968), as the source of a federal law taxpayer cause of

action is misplaced. Flast, it is true, permits state or

municipal taxpayer suits in federal court, e.g., Public Funds

for Public Schools v. Byrne, No. 78-1218, at 5 n.3 (3d Cir.

Jan. 12, 1979), but only to challenge expenditures in viola-

tion of those constitutional provisions which are recog-

nized as specific limitations upon state power to tax and

spend. Assuming arguendo that the plaintiff could show

an expenditure—and hence injury—in this case, he has

alleged no conduct in violation of a specific constitutional

limitation on the spending power. United States v. Rich-

ardson, 418 U.S. 166 (1974), makes this clear. In Richard-

son the plaintiffs contended that those provisions of the

Central Intelligence Act which provided that CIA expendi-

tures were not to be made public violated the constitutional

requirement that Congress publish a regular statement and

account. Art. I, §9, cl. 7. A requirement of a regular

ME

Al7

Opinion of the Court of Appeals.

statement of expenditures would appear to be a relatively

specific limitation upon the government’s exercise of the

spending power. The Supreme Court, however, held other-

wise. 418 U.S. at 175. In the wake of the Richardson

holding the claim that the general First Amendment guar-

antees of free press and free speech fall within the class

of specific limitations satisfying the Mlast test is without

merit." In the absence of an alternate source of taxpayer

standing appellant’s claim was properly denied.

IV. ConcLusion

Where, as here, a plaintiff seeks relief for the violation

of First Amendment rights of a newspaper, and the com-

plaint fails to allege either that the newspaper has actually

been inhibited in its reporting of the news, thus injuring

its readers’ right to hear, or that it is in some manner

inhibited from asserting its own First Amendment rights,

we hold that the complaint may be dismissed for failure to

state a claim upon which relief can be granted. The judg-

ment of the district court will be affirmed.

9. Moreover, a central, if unarticulated justification for the grant of tax-

payer standing in Flast was the feared lack of other suitable claimants capable

of raising the Establishment Clause claim against expenditures for non-public

education. See United States v. Richardson, supra, 418 U.S. at 195 n17

(Powell, J., concurring) ; 13 C. Wright, A. Miller & E. Cooper, Federal

inn and Procedure § 3531 at 195 (1975). That rationale is not available

ere.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Als

Order of the District Court Dismissing the Complaint

IN THE UNITED STATES DISTRICT COURT

For the Eastern District of Pennsylvania

LEE FRISSELL,

Plaintiff,

v.

FRANK L. RIZZO,

Mayor of the City of Philadelphia,

and

SHELDON L. ALBERT,

City Solicitor of the City of Philadelphia

and

CITY OF PHILADELPHIA, PENNSYLVANIA,

Defendants.

No. 78-2019

Civil Action

Filed June 22, 1978

AND NOW, this 22nd day of June, 1978, after hearing and

upon review of the complaint and after consideration of the

briefs and arguments of counsel, it is hereby

ORDERED

that the complaint be DISMISSED for the reason that plain-

tiff has no standing to bring this action.

BY THE COURT:

JOSEPH L. McGLYNN, §SR.,

J.

Entered 6/23/78

(Illegible)

Al9

Plaintiff's Motion for Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT

For the Eastern District of Pennsylvania

LEE FRISSELL,

Plaintiff,

v.

FRANK L. RIZZO, ET AL.,

Defendants.

Civil Action

No. 78-2019

Plaintiff hereby moves the Court for grant of a preliminary

injunction, restraining defendants from denying newspapers

customary public advertising as a reprisal for publication of

news articles deemed offensive by defendant Frank L. Rizzo.

The facts upon which this motion is based are set forth in the

verified complaint and in the attached newspaper article.

/s/ RICHARD A. ASH,

Richard A. Ash,

LYMAN & ASH,

1612 Latimer Street,

Philadelphia, PA 19103,

Attorney for Plaintiff.

Exhibit to Plaintiff's Motion for Preliminary Injunction.

Che Evening Bulletin

Tuesday une 13 1978

A20

Rizzo Pulls Legal Ads Out of Bulletin

By DAVID RUNKEL

Ané A.W. GEISELMAN JR.

Of The Bulletin Staff

Mayor Rizzo sa:d ioday he has in-

structed city officals to withhold city

legal advertisements from the Bulle-

tin ‘forever,’ then added: ‘‘or as long

as I'm mayor.”

“You have to hit them in the pocket-

book where it hurts,” he said at an ~

impromptu news conference.

The move, he said, was the result of

a story which appeared im the Sunday

Bulletin reperting that negotiations

were in progress to offer cancer insur-

ance to city employes. The local rep-

resentative of the insurance firm.

American Family Life Assurance Co.

of Columbus, Ga., is Alfred E. Sanith

O'Neill, who 1s spearheading a dnve

to change the City Charter so Mayor

Rizzo can seek a third term

Bulletin officials said this afternoon

that city advertising billings with the

Bulletin total $280,000 a year, and that

sheriff's sales advertising accounts

for another $190,000

City Geliciter Sheldon L. Albert satd

he “will certainly pass on the Admin-

istration's polcy to the sheriff and |

have no doubt that he will go along

with pulling sheriff's sales ads out of

the Bulletin.”

He pointed out that only ads in

which the mayor has the discretion to

Cae are ie 5) et See Se Se

For instance, he said, there is a city

Please Turn to Poge 5

:

A2l

Exhibit to Plaintiff's Motion for Preliminary Injunction.

Contineed Prem First Pege

wdinaace which requires ‘nat pro-

‘used City ordinances be advertised in

ne three city newspapers of largest :

‘wreulation, so the mayor could not

wll those ads from the Bulletin.

Earlier today, the mayor said he

would immediately fire any person in

ats Administration who negotiated

with the cancer-insurance firm repre-

tented by third-term charter-support-

> O'Neill.

Rizzo said he remains convinced,

however, tha’ no such negotiations be-

ween his Administration and O'Neil!

ver took place.

The Bulletin's Sunday story re-

veated that a top official of American

Family Life Assurance Co. had said

thal negotiations were in progress to

offer cancer insurance to cily

employes

Policy premiums could be paid

through a payroll-deduction plan, ac-

cording to R. Lee Anderson, company

vice president.

Rizzo said he understood that as a

resalt of an investigation by City So-

‘ citor Albert there had been some dis-

cussion on selling the cancer insur-

ance © members of the city employes

credit union. He pointed out that the

credit umion 1s not a city government

agency.

**‘Name the person,”’ Rizzo said at a

morning news cunference today (0 a

Bulletin reporter ‘If anyone in my

Administration negotiated with this

company, he will be fired before you

can say Yankee Doodle Dandy.

“You give me the names and I'll

fire them."

Rizzo said the Bulletin story is

“helping me change my mind’ about

running for a third term

“When | made that statement at

Whitman, | was sincere,"’ the mayor

said concerning his March speech at

Whitman Park during which he an-

nounced he would not seek a charter

change nor another term as mayor.

Rizzo added:

“In their (the Bulletin'’s) desire to

destroy me, they are making me con-

sider changing my mind. | am vacil-

lating.”

Noting that ‘‘a lot of people are de-

pending on ‘me,"’ the mayor said the

major issues before Philadelphia now

are public housing, quota systems (in

minority hirings and educational

admissions) and the death penalty.

Rizzo indicated he was a strong pro-

ponent of the death penalty and an op-

ponent of quota systems and that

Other potential candidates did not

share his views on these issues.

At his press conference, the mayor

also accused Bulletin managing editor

George Kentera of “arrogance.”

; “i never spoke with enytedy! with

such arrogance,” Rizzo suid. “| tried

to tell him that was u bad story; that

it Was not a true story, and | asked

him to look into it.’

He said Kentera did not respond to

his criticism.

“If Thad exhibited that arrogance. !

would deserve to be voted out of

office,"’ Rizzo said. ‘I understand now

why the papers do not have any credi-

bility."

Kentera issued this reply: ‘‘{n our

telephone discussion | treated the

mayor with the courtesy and attention

to which he is entitled as the elected

representative of the people of Phila-

delphia. I shall cuntinue to do that.

“But the mayor is mistaken when

he suys | did nut respond to his com-

plaint. | told him, and | tuld his city

solicitor, Mr. Albert, that the Bulletin

responsible. I continue to hold that

opinion."’

The report in the Sunday Bulletin

said O'Neill was laying plans to sefl

cancer insurance to city employes

through a city payroli-deduction pian. °

Rizzo refused to answer questions’

about O'Neill before the story wat

published

resporsible, I continue to hold that |

O'Neill, who has said & sense of civ.

ic interest is his Only motive for pro-

moting a City Charter change to allow

Rizzo to seek a third term, has not re-

sponded to the Bulletin story — either

before its publication or afterwards.

Anderson told the Bulletin last week

that American Family Life was nego-

tating with the City of Philadeiphia to

offer the firm's cancer insurance to

a employes on a payrolt-deduction

“A ’

Anderson twice reconfirmed his

statement in the wake of the Bulletin's

Sunday report

In addition, a Philadelphia insur-

ance executive told the Bulletin

O'Neill approached him about three

weeks ago and said Rizzo had given

the green light to a cancer-insurance

offering to.city employes. That source

also reconfirmed the accuracy of the

Sunday Bulletin report after Rizzo's

denials.

Deputy City Commissioner Michael

McAllister said today O'Neill ap

proached him on Friday with a “prop-

osition’’ of marketing American Farn-

_tly Life cancer insurance to city em-

ployes through the Philadelphia City

Employes Federal Credit Union of

_ which McAllister is an officer.

McAllister said O'Neill told him,

“We've been to the city Finance De-

partment and they've (turned us

down."

McAllister said after a review of

O'Neill's proposal. the credit union

algo turned ()'Neill down.

A22

The Complaint

IN THE UNITED STATES DISTRICT COURT

For the Eastern District of Pennsylvania

LEE FRISSELL,

Plaintiff,

oe

FRANK L. RIZZO,

Mayor of the City of Philadelphia,

JM

‘and

SHELDON L. ALBERT,

City Solicitor of the City of Philadelphia,

and

CITY OF PHILADELPHIA, PENNSYLVANIA,

Defendants.

Civil Action

No. 78-2019

1. This action arises under the Civil Rights Act, Title 42

U.S.C. § 1983, which provides redress for deprivation of

Constitutionally protected rights under color of state law.

2. This Court has jurisdiction under Title 28 U.S.C.

§ 1343, which provides jurisdiction to district courts to

redress deprivation under color of state law of

Constitutionally protected rights.

A23

The Complaint.

Identity of the Parties

3. Plaintiff, Lee Frissell, is an individual residing in the

City of Philadelphia (‘‘the City’), in the Commonwealth of

Pennsylvania. He is a registered voter and taxpayer in the

City.

4. Defendant the City is a corporate and political body

and a municipal subdivision of the Commonwealth of Penn-

sylvania. It has about two million residents and is the fourth

largest city in the United States.

5. Defendant Frank L. Rizzo is the Mayor of

Philadelphia.

6. Defendant Sheldon L. Albert is the City Solicitor of

Philadelphia. In that capacity, he serves as chief legal adviser

to the City and its various officials.

Background of the Litigation

7. The Evening Bulletin (“‘the Bulletin”) is a newspaper of

general circulation published daily in Philadelphia and

widely circulated within Philadelphia and its environs. It is

one of the two most widely circulated newspapers in

Philadelphia.

8. Early in June, 1978, the Bulletin published certain news

articles that Mayor Rizzo deemed offensive.

Acts Complained of

9. In direct reprisal for the Bulletin’s publication of these

articles, Mayor Rizzo promulgated a policy whereby the

Bulletin is to be deprived of certain public advertisements

that are customarily run in this newspaper and paid for out of

the public funds. The value of such advertising totals about

$280,000.00 on an annual basis.

A24

The Complaint.

10. Mayor Rizzo called a public press conference to an-

nounce his policy and its purpose of hurting the Bulletin in its

pocketbook. He also said that he would recommend that the

Sheriff of Philadelphia County carry out a similar policy with

respect to public advertising under his control.

11. Defendant Albert aided and abetted the Mayor in the

formulation and impiementation of these policies. He has

further stated that he will recommend that the Sheriff of

Philadelphia County, to whom he is a legal adviser, carry out

similar policies.

12. The effect of defendants’ activities is to chill and

inhibit freedom of the press and freedom of expression in the

City, to the detriment of plaintiff and other citizens.

WHEREFORE, on the basis of the foregoing, it is request-

ed that the Court enter judgment granting the following

relief:

(a). Preliminarily and permanently enjoining defendants

from denying newspapers customary public advertising as a

reprisal for publication of news articles deemed offensive by

the Mayor; and from taking other reprisals against the press

in their official capacities;

(b). Granting such other and further relief as is warranted

by the circumstances;

(c). Awarding costs of suit and reasonable attorney’s fees.

/s/ RICHARD A. ASH,

Richard A. Ash,

LYMAN & ASH,

1612 Latimer Street,

Philadelphia, Pa. 19103,

(215) 732-7040,

Attorney for Plaintiff.

_ i