Reply Brief — Writers Guild of America, West, Inc. v. American Broadcasting Cos.

rane Gout, 0.8.

‘EILED

AUG1 1980

| WIOHAEL RODAK, JR. CLERI

No. 79-1717

IN THE

Supreme Court of the United States

October Term, 1979

WRITERS GUILD OF AMERICA, WEST, INC., et all.,

Petitioners,

vs.

AMERICAN BROADCASTING COMPANIES, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

PETITIONERS’ REPLY BRIEF.

RONALD L. OLSON SETH M. HUFSTEDLER

MONROE E. PRICE JOHN SOBIESKI

NANCY Y. BEKAVAC DENNIS M. PERLUSS

CHARLES D. SIEGAL EVELYN BALDERMAN HUTT

MUNGER, TOLLES BEARDSLEY, HUFSTEDLER

& RICKERSHAUSER & KEMBLE

612 South Flower Street 611 West Sixth Street

Fifth Floor Suite 2220

Los Angeles, California 90017 Los Angeles, California 90017

(213) 683-9100 (213) 626-0671

Attorneys for Petitioners

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

TABLE OF CONTENTS

Page

I OR 6s CR aes Ce iS a Be SS |

1. Prompt Judicial Scrutiny Of The First Amend-

ment Violation Was Essential............... ]

2. The Court of Appeals’ Final Decision On The

Issue Of Primary Jurisdiction Is Ripe For Review

BY RU RANE iis oe RES Uh eas os bie cee pee 3

CN US, Choa Sse CER Rea eS bo eek Cee wen 6

il

TABLE OF AUTHORITIES

Cases Page

Ackerman v. Columbia Broadcasting System, Inc., 301

Pr : CRO CEP Ey. ©. BOD sc bv viviespeeatbaces 3

Burlington Truck Lines, Inc. v. United States, 371 U.S.

SE NED 5h lK Peed vile hdc Rae Knees oA 2

Columbia Broadcasting System, Inc. v. Democratic Na-

tional Committee, 412 U.S. 94 (1973) ........... 3

Columbia Broadcasting System, Inc. v. Federal Com-

munications Commission, 454 F.2d 1018 (D.C. Cir.

PRES GERD RAS COD oon ee cad Ra ee ES 2

Greene v. United States, 376 U.S. 149 (1964) ...... 5

Massachusetts Universalist Convention v. Hildreth &

Rogers Co., 183 F.2d 497 (ist Cir. 1950) ........ 3

McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597

(3d Cir. 1945),cert. denied, 327 U.S. 779 (1946)

United States v. General Motors Corp., 323 U.S. 373

SE ir eee Ew RA RC ONE KO URE VERSE eee 4

United States v. W.T. Grant Co., 345 U.S. 629 (1953)

Writers Guild of America, West, Inc. v. Federal Com-

munications Commission, 423 F. Supp. 1064 (C.D.

Ga SO eso oo sie CRA Kee senda ceh enews 1,3, 4

Writers Guild of America, West, Inc. v. American

Broadcasting Companies, Inc., 609 F.2d 355 (9th Cir.

REFN Ba ON he Rib eee nas coe ede 4

iil

Page

Statutes

Administrative Procedure Act, Section 10(b), 5 U.S.C.

PD Ee Fe ee U.S ka vis cis eo ela ve 0 Ge 3

Communications Act of 1934, Section 402(a), 47 U.S.C.

EES ike SRE OG ead CaO a 3

Communications Act of 1934, Section 405, 47 U.S.C.

SSN BEDI RR ste SN tr bo a ne 3

Communications Act of 1934, Section 405, 28 U.S.C.

ME Wee er eho obi hs a vie’ ee wh os 4

Rule

No. 79-1717

IN THE

Supreme Court of the United States

October Term, 1979

WRITERS GUILD OF AMERICA, WEST, INC., ef al.,

Petitioners,

vs.

AMERICAN BROADCASTING COMPANIES, INC., ef al.,

Respondents.

PETITIONERS’ REPLY BRIEF.

ARGUMENT

1. Prompt Judicial Scrutiny Of The First Amendment

Violation Was Essential.

The Petition showed conclusively that the holding of the

Court of Appeals directly conflicts with this Court’s re-

quirement of prompt judicial review of alleged restraints on

speech.' Respondents cite no authority to rebut that position.

Respondents argue, however, that there is ‘‘no continuing

constitutional violation. . . .’’? But, the reason there is now

'Pet. at 18. Hereinafter, the Petition will be cited as ‘‘Pet. at

...., Private Respondents’ Opposition as ‘*Private Opp. at ....,’’ and

Federal Respondents’ Opposition as ‘*‘Federal Opp. at ..... a

Federal Respondents’ statement that the district court “‘withheld the

injunctive remedy,’’ Federal Opp. at 11 n.4, mischaracterizes the rec-

ord. That court held an expedited procedure, see note 15 infra; it did

not grant an injunction in its final order only because the FCC disclaimed

any intention to enforce the Family Viewing Policy and because the

district court did ‘‘not believe that the Commission will soon venture

again on a lawless course.’’ 423 F.Supp. at 1155-57, App. at A-228-

A-231.

Private Opp. at 20.

icin

no continuing constitutional violation is that the district court

declared that the Family Viewing Policy violates the First

Amendment and the Administrative Procedure Act (“‘APA’’).

The NAB suspended enforcement after the district court’s

judgment.’ Accordingly, the issue of whether the district

court had jurisdiction to declare the Family Viewing Policy

unconstitutional is properly before this Court. It is well-

established that voluntary cessation of unlawful conduct,

particularly when timed to blunt the force of a lawsuit, does

not justify a refusal to review the merits or to enter appro-

priate equitable relief.*

Respondents also imply that if there is no reference to

the FCC, the FCC will be unable to consider the constitu-

tional issues in this case.° Petitioners have never denied that

in appropriate cases the FCC can and should state its views

on First Amendment issues before it. It does not follow,

however, that when the FCC has acted, and the consistency

of its action with the First Amendment has been put into

question, a district court should first refer the matter to that

agency before considering the constitutionality of the FCC’s

action. The Court of Appeals’ decision requires district

*Private Opp. at 23.

cages e.g., United States v. W. T. Grant Co., 345 U.S. 629, 633

*Private Opp. at 15-16, 17-18; Federal Opp. at 13-14, 15-16.

_ Such reference is particularly inappropriate where the FCC is well

situated, as a party to the lawsuit, to express its views. Respondents

assert that the district court could not rely in the FCC’s counsel’s

statements at trial. Federal Opp. at 15; Private Opp. at 21. Thay are

wrong. This case is no different from any other case in which counsel’s

admissions are binding on the client. Glick v. White Motor Co., 458

F.2d 1287, 1291 (3d Cir. 1972). Respondents rely on Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156 (1962) and its progeny.

Those cases are totally inapposite. In them, appellate counsel attempted

belatedly to explain agency action for which the agency had given no

reasons or reasons other than those stated on appeal. E.g., Burlington

Truck Lines, Inc. v. United States, supra, 371 U.S. at 169; CBS v.

FCC, 454 F.2d 1018, 1026-7 (D.C. Cir. 1971). Here, in contrast, the

FCC’s trial counsel conducted a vigorous and lengthy defense over a

period of many months, often reiterating definite positions on behalf

of the agency.

7,

aes

courts to permit unconstitutional agency action to continue

while the very agency which took the action considers the

constitutionality of its own conduct. This cannot be the law.’

Private Respondents’ reliance on CBS v. DNC® is mis-

placed. CBS v. DNC did not even deal with the question

of reference to the FCC. While this Court reaffirmed that

the FCC has expertise in the constitutional questions pre-

sented in that case, it did so in a review of an FCC action,

precisely what Petitioners requested in this case. Nothing

in CBS v. DNC suggests that this Court would permit, much

less require, the result ordered by the Ninth Circuit in this

case.”

2. The Court Of Appeals’ Final Decision On The Issue

Of Primary Jurisdiction Is Ripe For Review By This

Court.

There is absolutely no merit to Private Respondents’ con-

tention that the Court of Appeals’ decision is not final and

’Courts have routinely ruled on constitutional claims in the broadcast

area without requiring FCC review of those claims. See, e.g., Mas-

sachusetts Univ. Conv. v. Hildreth & Rogers Co., 183 F.2d 497, 500-

O1 (1st Cir. 1950); McIntire v. Wm. Penn Broadcasting Co., 151 F.2d

597, 600-01 (3d Cir. 1945), cert. denied, 327 U.S. 779 (1946); Ack-

erman v. Columbia Broadcasting System, Inc., 301 F. Supp. 628, 634

(S.D.N.Y. 1969).

Pe U.S. 94 (1973).

espondents also make two patently false statu ments.

First. they argue that Section 405 of the Communodioas Act, 47

U.S.C. § 405, requires that the FCC reconsider the actions it took.

Private Opp. at 16 n.47, 18; Federal Opp. at 15 n.8. However, that

section applies to actions taken in any ‘‘proceeding.’’ Here, Petitioners

complained that the FCC acted informally and wholly outside any for-

mal proceeding. Thus, Section 405 is inapplicable.

Second, contrary to Respondents’ argument, Private Opp. at 22,

Section 402(a) of the Communications Act, 47 U.S.C. § 402(a), does

not vest exclusive jurisdiction to review FCC ‘‘actions’’ in the courts

of appeals. Section 402(a) applies only to ‘‘orders,’’ not all actions.

See 423 F.Supp. at 1079, App. at A-70-A-72. Here, Petitioners do not

complain of FCC orders. Section 10(b) of the APA, 5 U.S.C. § 703,

thus permits review in ‘‘any applicable form of legal action. . . .”’

site as

therefore not ripe for review. Indeed, because of the fun-

damental nature of the issue of law involved in the Ninth

Circuit’s decision, even were that decision ‘‘non-final,’” it

would be appropriate to grant the Petition.'°

Private Respondents argue that the Ninth Circuit’s de-

cision ‘‘is clearly interlocutory, and many complex issues

remain to be decided.’’'' In fact, the district court entered

a final judgment in the Writers Guild case as to all issues

involving the First Amendment, the Communications Act

and the APA." Similarly, in the Tandem case the district

court finally resolved all questions except for the amount

of damages for the First Amendment violation."

To be sure, the Ninth Circuit’s decision on primary ju-

risdiction requires the district court to refer the claims

against Federal Respondents to the FCC." If the Ninth Cir-

cuit’s decision stands, further proceedings will be required.

But to assert that such an order makes the decision of the

Court of Appeals an ‘‘interlocutory judgment’’ is to prove

too much. Under that analysis, every case involving a re-

mand with directions to the district court will be ‘‘clearly

interlocutory,’’ regardless of the final nature of the original

See, e.g., United States v. General Motors Corp., 323 U.S. 373,

377 (1945) (ruling ‘*fundamental to the further conduct of the case’’).

"Private Opp. at 23.

'2423 F. Supp. at 1161-62, App. at A-240-42.

'°423 F. Supp. at 1161-62, App. at A-240-42. Federal Respondents

go a step further than Private Respondents and suggest that all of the

appeals before the Ninth Circuit were ‘‘interlocutory.’’ Federal Opp.

at 6 n.3. That argument is based on a significant distortion of the record.

All appeals to the Ninth Circuit in the Writers Guild action were

from the final judgment of the district court. Jurisdiction was based on

28 U.S.C. § 1291, governing appeals from such ‘‘final decisions.’’

Similarly, although Private Respondents filed an interlocutory appeal

in the Tandem case, in that action the district court directed entry of

a final judgment as to the federal defendants. The Government’s notice

of appeal in Tandem, filed on or about April 27, 1977, was from ‘the

final judgment entered in this action. . . ."’

'*609 F.2d at 366, A-25.

eae REE

district court judgment. The discretionary practice of de-

nying interlocutory review was not intended to apply in all

such cases.'°

If Respondents’ position were accepted, Petitioners would

be forced to endure a full-scale FCC inquiry and a second

appeal before this Court could determine if reference was

appropriate. It surely stands the interlocutory appeal doc-

trine and the primary jurisdiction doctrine, both intended

to promote economy, on their heads to require such a con-

voluted procedure. '®

"See, e.g., Greene v. United States, 376 U.S. 149 (1964) (Court of

Claims order suspending court proceedings pending exhaustion of ad-

ministrative remedies reviewed and reversed).

*Private Respondents also argue that any delay in the resolution of

the merits is Petitioners’ own fault because they ‘“chose not to pursue’’

a preliminary injunction. Private Opp. at 24. In constructing this ar-

gument, Private Respondents have misstated the record. At all times

Petitioners stressed the urgency of this case and sought immediate relief

by way of a preliminary injunction. The district court also recognized

the importance of a rapid resolution of the merits. Accordingly, pursuant

to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the district

court ordered the trial of the action on the merits to be advanced and

consolidated with the hearing on Petitioners’ application for a prelim-

inary injunction. The statement that Petitioners ‘‘chose not to pursue’’

that remedy is simply false.

icine

CONCLUSION.

For the foregoing reasons Petitioners request this Court

to grant the Petition.

DATED: July 31, 1980.

Respectfully submitted,

RONALD L. OLSON SETH M. HUFSTEDLER

MONROE E. PRICE JOHN SOBIESKI

NANCY Y. BEKAVAC DENNIS M. PERLUSS

CHARLES D. SIEGAL EVELYN BALDERMAN HUTT

MUNGER, TOLLES BEARDSLEY, HUFSTEDLER

& RICKERSHAUSER & KEMBLE

612 South Flower Street 611 West Sixth Street

Suite 2220 Suite 2220

Los Angeles, California 90017 Los Angeles, California 99017

(213) 683-9100 (213) 626-0671

Attorneys for Petitioners.