Petition for Writ of Certiorari — William F. Buckley, Jr. v. American Federation of Television and Radio Artists

Supreme Court brief1974

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SEP 20 1974

CHAEL RODAK, JR..CLERK

Supreme Court of the United s eee

October Term 1974

* 74-313

WILLIAM F. BUCKLEY, IR., NATIONAL REVIEW and

M. STANTON EVANS,

Petitioner,

AMERICAN FEDERATION OF TELEVISION AND RADIO

ARTISTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

C. DICKERMAN WILLIAMS

Counsel for Petitioners

444 Madison Avenue

New York, N.Y. 10028

JohN L. KILCULLEN,

EpiTH HAxkoLA,

Of Counsel

September, 1974

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TABLE OF CONTENTS

Opinions Belo „„

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Questions Presented for Revi

Relevant Constitutional and Statutory Provisions . .

Statement of the Case.

The Complaints 0.2.00. „„ „ „ „ 4 6

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The Decision of the District Court ..............

The Position of the Union in the Court of Appeals

The Decision of the Court of Appeals ............

Reasons for Granting the Writ .................

1. In conflict with applicable decisions of

this Court, the Court of Appeals has upheld a

law authorizing prior restraint of speech despite

the absence of “clear support in public danger,

actual or impending” g ͥ̃

2. In conflict with applicable decisions of

this Court, the Court of Appeals has applied the

doctrine of pre-emption when (1) the union had

breached its duty of fair representation by what

the Court itself found to be “misrepresentation”

and “coercion”, (2) the law on the subject is

“settled” as the union concedes, and (3) the

uncertainty and time-consuming nature of re-

course to the Board would, if availed of, effect a

prior restraint of speech for at least a period of

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3. In conflict with applicable decisions of

this Court, the Court of Appeals has failed to

afford the employer-broadeasting companies un-

restricted discretion in the employment of com-

mentators on public affairs in the discharge of

their duty under the Fairness Doctrine ......

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Table of Cases

Adams v. International Brotherhood, 262 F. 2d 835

. a ee re

Boilermakers Local 749 v. National Labor Relations

Board, 466 F. 2d 343 (C. A. D.C. 1972) ........

Booster Lodge No. 405 v. National Labor Relations

Board, 412 U.S. 84(1973) ..................

Branzburg v. Hayes, 408 U.S. 665(1972) ........

Columbia Broadcasting System v. Democratic Na-

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

Cox v. New Hampshire, 312 U.S. 569(1941) .....

Freedman v. Maryland, 380 U.S. 51(1965) ......

International Association of Machinists v. Street,

. . mA ̃ AAA ĩ OSD risen

Lewis v. American Federation of Television and

Radio Artists, 71 Misc. 2d 253 (Sup. Ct. N.Y.

1972), affirmed 41 A.D. 2d 707 (1973), affirmed

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Mine Workers v. Illinois Bar Association, 389 U.S.

TCC

PAGE

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iii

Murdock v. Pennsylvania, 319 U.S. 105(1943) .... 8

National Labor Relations Board v. General Motors,

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National Labor Relations Board v. Textile Workers,

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Near v. Minesota, 283 U.S. 697 (1931777777) 8

New York Times Co. v. United States, 403 U.S. 713

7 AA saweenndewens 8

Radio Officers Union v. National Labor Relations

Dee cc cesscncececs 13

Railway Employees Department v. Hanson, 351 U.S.

TCE 10

Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963) 13

San Diego Building Trades Council v. Garmon, 359

c T 7

Shulthis v. McDougal, 225 U.S. 561 (1912) 17

Thomas v. Collins, 323 U.S. 516 (1945) ......... 8, 9, 11

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 17

Vaca v. Sipes, 386 U.S. 171 (1967))ꝛ!ũũ 12

West Virginia Board of Education v. Barnette, 319

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STATUTES CITED

United States Constitution:

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Fourteenth Amendment ..................... 8,9

National Labor Relations Act:

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Title 5, United States Code § 554(e) ............ 15

Title 28, United States Code:

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Index of Appendices

Appendix A (Further Relevant Statutes) ....... la

Appendix B (Opinion of Court of Appeals, WATER-

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Appendix BB (Concurring Opinion of FRIENDLY,

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Appendix C (Opinion of District Court, BRIEANT,

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Supreme Court of the United States

October Term 1974

No.

—

WILLIAM F. BUCKLEY, NATIONAL REVIEW, INC., and M.

STANTON EVANS,

Petitioners,

—against—

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Respondent.

1 *

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

6 FOR THE SECOND CIRCUIT

WILLIAM F. BUCKLEY, NATIONAL REVIEW, INC. and

M. STANTON EVANS (hereinafter “petitioners” when re-

ferred to collectively) pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Second Circuit entered herein.*

Opinions Below

The opinion of the Court of Appeals (WATERMAN, J.)

is not yet reported; it appears in the appendix to this peti-

tion at page 2b. A concurring opinion by FRIENDLY, J.,

appears at page 17b.

The opinion of the District Court (BRIEANT, J.) is

reported at 354 F. Supp. 823; it appears in the appendix to

this petition at page 19c.

* It is intended that a petition by Fulton Lewis III seeking review

of a decision by the New York Court of Appeals (34 N.Y. 2d 265,

1974) involving similar facts and issues of law be filed simultaneously

with this petition.

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Jurisdiction

The opinion of the Court of Appeals was entered on

April 30, 1974. A petition for rehearing, filed within the

enlarged time ordered by the Court, was denied on J uly 1,

1974,

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

Questions Presented for Review

1. Does prior restraint of speech under the authority

of § 8(a) (3) of the National Labor Relations Act to com-

pel the payment of dues by commentators on public affairs

violate the First Amendment, especially when the com-

mentators in good faith challenge their liability to pay

dues because the union has not functioned as their “exclu-

sive representatives” as provided by §9(a) and has con-

ferred upon them minimal, if any, benefit?*

2. Should the National Labor Relations Act doctrine

of pre-emption stated by this Court in Motor Coach Em-

ployees v. Lockridge, 403 U.S. 274 (1971), be extended to

apply when (1) the effect is prior restraint of speech for

an indefinite period of time, (2) the union has engaged in

“misrepresentations” and “coercion”, not “honest, mistaken

conduct”, and (3) the law on the subject is “settled”?

3. Does the Fairness Doctrine of the Federal Commu-

nications Act forbid restrictions on the employment of

commentators on public affairs by broadcasting companies?

Relevant Constitutional and Statutory Provisions

UNITED STATES CONSTITUTION: FIRST AMENDMENT

“Congress shall make no law... abridging the

freedom of speech or of the press...”

* 28 U.S.C. § 2403 may be applicable. The District Court certified

to the Attorney-General that the constitutionality of the Act was

drawn in question.

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NATIONAL LABOR RELATIONS ACT

§ 8(a) (3): .. Nothing in this act, or in any

other statute of the United States, shall preclude an

employer from making an agreement with a labor

organization . . . to require as a condition of em-

ployment membership therein on or after the thir-

tieth day following the beginning of such em-

ployment or the effective date of such agreement,

whichever is the later, (i) if such labor organization

is the representative of the employees as provided

in section 9(a) of this Act, in the appropriate col-

lective bargaining unit covered by such agreement

when made, . Provided further, That no employer

shall justify any discrimination against an employee

for nonmembership in a labor organization. . or

(B) if he has reasonable grounds for believing that

membership was denied or terminated for reasons

other than the failure of the employee to tender the

periodic dues and the initiation fees uniformly re-

quired as a condition of acquiring or retaining mem-

bership;

§ 9(a): “Representatives designated or selected

for the purposes of collective bargaining by the ma-

jority of the employees in a unit appropriate for

such purposes, shall be the exclusive representatives

of all the employees in such unit for the purposes

of collective bargaining in respect of pay, wages,

hours of employment, or other conditions of employ-

ment...”

Additional relevant statutes are quoted in Ap-

pendix A.

Statement of the Case

The facts are stated in some detail by the District Court

at pages 35c-43c, 354 F. Supp. 826-836. This statement of

facts was commended by the Court of Appeals at page 4b;

the Court of Appeals summarized the facts at pages 4b-6b.

— WTAE ORAL ATO APE . e

The cases arose because, under the authority of the

National Labor Relations Act, the respondent union pre-

vents petitioners from comment on public affairs unless

they maintain membership in the union in good standing.

Briefly, petitioners are commentators on public affairs

employed by broadcasting companies who have “collective

bargaining agreements” with respondent union, the bar-

gaining agent for the collective bargaining unit of which

petitioners are members. These agreements are uniform

throughout most of the industry and are known as the

“Code of Fair Practice”. 21¢-81c.

Of particular importance here is § 84 of the TV Code

(25c) ;* § 84 requires that the broadcasting companies

“employ and maintain in our employment only such

persons as are members (of respondent union) in

good standing.”

The union rests upon § 8(a) (3) as authority for this

provision.

“Membership in good standing” means not only the pay-

ment of dues but also compliance with union orders; the

union may order strikes, observance of picket lines, refusal

to do business with employers in TV and radio, etc. 41c-42c.

In accordance with § 84 of the Code of Fair Practice, the

employer broadcasting companies inserted clauses in their

employment contracts with petitioners requiring them to

join the respondent union.

In Buckley’s case on repeated occasions representatives

of the respondent union, and employer broadcasting com-

panies under pressure from the respondent union, told him

There are separate codes for TV and radio; §57 of the

radio Code, applicable to Evans, is identical with §84 of the TV

Code. For simplicity in presentation we shall hereafter refer exclu-

sively to § 84.

that union membership was indispensable to his appearance

on the air and in fact kept him off the air until he joined

the union, 36c-38c. In the case of Evans, the broadcasting

company, acting in accordance with § 84, told him that, de-

spite his opposition to compulsory unionism, he would not be

employed unless he joined the union. Under this pressure

he did so, against his will. 35c-36c. Thus the simple fact

is that unless a performer is a member of the union, he

cannot get work.

Despite the alleged collective bargaining agreement,

petitioners and the broadcasting companies negotiate di-

rectly with each other. The union does not in fact function

as “exclusive representatives” in accordance with 59 (a).

Petitioners’ “pay, wages, hours of employment” are gov-

erned by individual contracts negotiated by themselves. 4b.

Petitioners’ individual bargaining efforts bring them far

higher compensation than the Code of Fair Practice ne-

gotiated by respondent union.

The Complaints

The complaints, alleging jurisdiction under 28 U.S.C.

§§ 1831 and 1337, sought a declaratory judgment that

NLRA § 8(a) (3) was unconstitutional in so far as author-

izing agreements by which petitioners were required to be

members of the union in good standing, to obey the union’s

orders and to pay dues as a condition of comment on public

affairs, and that § 84 of the Code of Fair Practice was, as

to them, void and of no effect. The complaints also alleged

the illegality of these requirements under the Fairness

Doctrine and the NLRA.

The Answers

In its answers the union, represented by its regular

counsel, maintained that the issue in the case was the con-

stitutionality of § 8(a) (3) as applied to petitioners, and

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that petitioners could constitutionally be required to be

members in good standing and argued that it was constitu-

tional (JA 97a-99a). This position presumably reflected

what then was, and, except for the presentation of this case

to the Court of Appeals, appears to continue to be the legal

thinking of the union.

The Decision of the District Court

The District Court’s opinion, foreshadowing that of this

Court in Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 (1973), found in substance

that any restriction on the right of broadcasting licensees

to present “conflicting views on issues of public importance”

as they saw fit was forbidden by the Fairness Doctrine.

Congress did not intend, the District Court reasoned, to

constitute an exception to the Fairness Doctrine by § 8(a)

(3). 36a-38a. The District Court did intimate that other-

wise § 8(a) (3) would violate the First Amendment. 48a-

54a.

As regards dues, the District Court held that inasmuch

as petitioners negotiated their own contracts, the only bene-

fit derived by petitioners from union membership was “en-

rollment in its pension plan”. This “benefit”, the Court

found, was insufficient to require the payment of dues. 68c.

This ruling was of course in the context of the parties

presentation to the Court, a presentation to which we refer

infra page 14.

The District Court therefore, on cross-motions, granted

summary judgment declaring that, as applied to petitioners,

§ 84 of the Code of Fair Practice was “void and of no

effect.” 3b.

The Position of the Union in the Court of Appeals

Special counsel retained by the union greatly altered

its position in the Court of Appeals. Special counsel argued

that 58 (a) (3) required only the payment of dues; that

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section forbade a requirement of membership“ in other re-

spects. As to a declaratory judgment saying this, the juris-

diction of the District Court was pre-empted by that of the

National Labor Relations Board. As to the requirement of

dues no constitutional question was presented because there

was no “government action”—indeed the alleged lack of

government action was the union’s primary contention as

the opinion of the Court of Appeals indicates. In any event

dues were justified.

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The Decision of the Court of Appeals

The Court of Appeals reversed. 17b.

As seen by the Court of Appeals the First Amendment

was not so “exalted” as to forbid a law effecting a prior

restraint of speech “where there is a proper governmental

purpose”, citing Cox v. New Hampshire, 312 U.S. 569

(1941) (11b). Here “Congress was understandly con-

cerned with minimizing industrial strife” (11b), and hence

prior restraint was appropriate to collect dues.

The Court of Appeals further held that the District

Court lacked jurisdiction to declare that § 84, in so far as it

required petitioners to be members of the union, was “void

and of no effect”. Primary jurisdiction over the issue of

compulsory membership had been vested exclusively in the

National Labor Relations Board by San Diego Building

Trades Council v. Garmon, 359 U.S. 236 (1959), and Motor

Coach Employees v. Lockridge 403 U.S. 274 (1971) (13b-

17b).

Or what was called “full-fledged membership.“ an expression

apparently coined by special counsel to describe membership in the

ordinary sense, as distinguished from membership“ for dues- paying

purposes only. In this petition the word “membership” by itself is

used to refer to what is ordinarily meant by that term.

Reasons for Granting the Writ

1. In conflict with applicable decisions of this Court,

the Court of Appeals has upheld a law authorizing prior

restraint of speech despite the absence of “clear support

in public danger, actual or impending” .*

The Court of Appeals erred, petitioners submit, in con-

cluding that a purpose of “minimizing industrial strife”

authorized Congress to enact a law providing for prior re-

straint of speech. In a long series of cases, Near v. Minne-

sota, 283 U.S. 697 (1931) ; Thomas v. Collins, 328 U.S. 516

(1945) ; New York Times Co. v. United States, 403 U.S. 713

(1971) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943),

this Court has held that reasonableness is not the test under

the First Amendment. The fact that a statute meets the

due process requirements of the Fifth and Fourteenth

Amendments does not mean that it is valid under the First

Amendment. Only in cases of “public danger, actual or

impending” may there be prior restraint of speech. -Patently

there is no such danger here, nor did Congress conceive

there to be, for by § 14(b) it authorized the states to forbid

both the union shop and the agency shop.

We would take issue with the Court of Appeals assertion

that prohibition of prior restraint of speech has not been

thus “exalted”. In our view this Court has “exalted” the

First Amendment, at least to that extent. And, differing

with the Court of Appeals, we would say that the dues are

very much “flat fees imposed directly on the exercise of a

federal right” (12b).

This Court has, as we see it, specifically rejected the

theory adopted by the Court of Appeals.

Thus in Mine Workers v. Illinois Bar Association, 389

U.S. 217 (1967), this Court held that laws abridging the

freedom of speech (page 222):

* Thomas v. Collins, 323 U.S. 516, 530 (1945).

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“cannot be sustained merely because they were en-

acted for the purpose of dealing with some evil within

the State’s legislative competence, or even because

the laws do in fact provide a helpful means of deal-

ing with such an evil.”

West Virginia Board of Education v. Barnette, 319 U.S.

624, 638-639 (1943), and Thomas v. Collins, 323 U.S. 516,

530 (1945), are to the same effect. On the cited pages

the Court drew the distinction between the criteria ap-

plicable in First Amendment cases as contrasted with Fifth

and Fourteenth Amendment due process cases.

The cases upholding the application to the press of

“valid laws serving substantial public interests,” Branz-

burg v. Hayes, 408 U.S. 665, 682, 683 (1972), have not in-

volved prior restraint of speech. The Court was careful

to say so, 408 U.S. 681:

“But this case involves no intrusion upon speech

or assembly, no prior restraint or restriction on

what the press may publish . . .”

Other cases supporting this doctrine make the same

distinction, in particular, Cox v. New Hampshire, 312 U.S.

at page 573 (municipality may charge fees for use of

public property). This Court expressly noted that appel-

lants in that case “were not prosecuted for distributing

leaflets, or conveying information by placards or other-_

wise . . .” 312 U.S. 573. The case is far from being a

precedent for the Court of Appeals decision here.

THE COURT OF APPEALS HAS UPHELD THE STATUTORY

COLLECTION OF DUES BY PRIOR RESTRAINT OF SPEECH AL-

THOUGH (1) THE UNION DOES NOT FUNCTION AS “EXCLUSIVE

REPRESENTATIVES,” (2) PETITIONERS’ “PAY, WAGES, HOURS

OF EMPLOYMENT” ARE GOVERNED BY EMPLOYMENT CON-

TRACTS NEGOTIATED BY THEMSELVES, AND (3) THE INDIG-

NITY OF COMPULSORY UNION MEMBERSHIP HAS BEEN FOR

PETITIONERS, EVEN IN A FINANCIAL SENSE, A NUISANCE, NOT

A BENEFIT.

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The union, as regards compulsory dues, relied on Rail-

way Employees Department v. Hanson, 351 U.S. 225

(1956), International Ascociation of Machinists v. Street,

367 U.S. 740 (1961), and National Labor Relations Board

v. General Motors, 373 U.S. 734 (1963). None of these

decisions involved prior restraint of speech, but in any event

they are not applicable here.

The premise of these decisions was that the union had

negotiated for the employee, in accordance with statute,

the “wages, pay, hours of employment” under which the

employee worked. Under these circumstances the Court

reasoned, an employee who did not pay dues would be a

“free rider.” On the contrary, in the present case it is the

union who is the “free rider”, or at any rate an impostor.

The alleged benefit. The Court of Appeals, although

not suggesting that the union functioned as “exclusive

representatives,” did find that there was sufficient benefit

to warrant the collection of dues by prior restraint of

speech in that the petitioners had been enrolled in the

union’s pension plan. No such argument had been made

to the Court of Appeals by the union. This finding was

specifically based on the following paragraph in the opinion

of the District Court (12b-13b; 68c) :

“There is no evidence raising the factual issue

contemplated by the ‘free rider’ cases, that is, whe-

ther these plaintiffs are in fact ‘free riders’, or whe-

ther they do in fact enjoy any AFTRA benefits.

Apparently, these plaintiffs, by reason of union

membership, are enrolled in defendant’s pension

plan. That is all. They each bargained for their

own compensation, which is in excess of the union

‘scale’ or minimum, and do not appear to have bene-

fited in any other manner.”

In the Distriet Court the union had made no elaim of

benefit in its extended brief. Its voluminous affidavits

made no suggestion of benefit in the form of pension plan

or otherwise (JA. 220a-25la). These omissions were

sharply emphasized in petitioners’ reply brief in the District

Court. In the Court of Appeals the union did make a

claim of benefit, not on the basis of the pension plan, to

which no reference was made, but by reason of several ob-

scure clauses in the Code of Fair Practice not shown to have

any practical meaning to petitioners. Petitioners, there-

fore, had no occasion to and did not refer to the pension

plan in the Court of Appeals. Under these circumstances,

it was error, we believe, for the Court of Appeals, in a sum-

mary judgment case, to overrule the holding of the District

Court that “enrollment” in the pension plan did not show

benefit.

Even if the union had in fact functioned as “exclusive

representatives” for petitioners, we would urge that a stat-

utory scheme by which commentators on public affairs are

forced to pay dues to a union under penalty of prior re-

straint of speech violates the First Amendment. To compel

such payment on a theory of benefit of such doubtful valid-

ity as that adopted in this case makes the violation, as we

see it, an even more glaring conflict with applicable deci-

sions of this Court. Thomas v. Collins, 323 U.S. 516

(1945) *. :

* The Court noted in Thomas that any attempt to restrict First

Amendment liberties

„. .. must be justified by clear public interest, threatened not

doubtfully or remotely, but by clear and present danger

Accordingly, whatever occasion would restrain orderly dis-

cussion and persuasion, at appropriate time and place, must

have clear support in public danger, actual or impending.

Only the gravest abuses, endangering paramount interests,

give occasion for permissible limitation.” 323 U.S. 530.

Petitioners do not of course challenge the right of the

union to bring an action at law to collect dues; indeed they

would welcome such an action.

2. In conflict with applicable decisions of this

Court, the Court of Appeals has applied the doctrine of

pre-emption when (1) the union had breached its duty

of fair representation by what the Court itself found to

be “misrepresentation” and “coercion”, (2) the law on

the subject is “settled” as the union concedes, and (3)

the uncertainty and time-consuming nature of recourse

to the Board would, if availed of, effect a prior restraint

of speech for at least a period of time.

The extension of the doctrine of pre-emption as defined

in Motor Coach Employees v. Lockridge to the circum-

stances of this case conflicts, petitioners submit, with at

least three decisions of this Court.

(1) When a union has breached its duty of fair repre-

sentation by taking action towards members of the collec-

tive bargaining unit lacking in “complete good faith and

honesty” and by “invidious treatment ... in matters affect-

ing their [such members’] employment,” it cannot “fairly

be implied that Congress intended exclusive jurisdiction to

lie with the NLRB.” Vaca v. Sipes, 386 U.S. 171 (1967),

at pages 177, 179.

Here the Court of Appeals has expressly found that the

union has been guilty of “misrepresentations” and “coer-

cion,” in its assertions to petitioners, directly and indirectly,

that union membership was a condition of employment.

Page 15b, footnote 5.*

Obviously this is not a case of “honest, mistaken con-

duct”, 403 U.S. 301, such as was before the Court in Lock-

ridge.

* The union agrees (1) that it is not entitled as a matter of law

to compel membership but (2) that in fact it does so (brief in Court

of Appeals, pages 28 and 12).

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(2) When the law on a subject is “settled,” the “exper-

tise” of the NLRB is not needed. Hence there is no occa-

sion for the doctrine of pre-emption. Retail Clerks v.

Schermerhorn, 373 U.S. 746 (1968).

Here it has been abundantly settled since Radio Officers

Union v. National Labor Relations Board, 347 U.S. 17,

40-41 (1954), that a union may not compel membership.

Cf. also National Labor Relations Board v. Textile

Workers, 409 U.S. 213 (1972); Booster Lodge No. 405 v.

National Labor Relations Board, 412 U.S. 84 (1973), and

innumerable cases in the Courts of Appeals some of which

are listed in Boilermakers Local 749 v. National Labor

Relations Board, 466 F. 2d 343 (C.A. D.C. 1972).

There is no dispute with the union—or at least with its

special counsel—on this subject. In its brief in the Court

of Appeals, the special counsel conceded, if he did not

proclaim, that the union could not compel membership, or,

as he referred to it, “full-fledged membership.” (brief,

page 28; quoted in footnote 5 of opinion of Court of Appeals,

14b-15b) .*

The Court of Appeals also regarded the law as settled

that unions could not compel membership (14b-15b) ; that

view of the law was of course the basis of its finding that

the union had been guilty of “misrepresentation” and

“coercion.”

When there is no dispute as to either the facts or the

substantive law, surely it is an exercise in futility to pre-

empt jurisdiction of a court which otherwise has it in favor

* Nevertheless despite this concession, the union has not revised

§ 84 and it continues in effect.

It so happens that at the time of the Court of Appeals decision

William A. Rusher, a close associate of Buckley and publisher of

National Review, was negotiating with National Broadcasting Corpo-

(Footnote continued on next page)

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of an administrative body in order to determine whether the

facts constitute the kind of injury for which that body is

authorized to grant relief. According to Retail Clerks v.

Schermerhorn that exercise in futility is not required.

(Footnote continued from previous page)

ration employment to comment on public affairs. In response to his.

protest against joining the union, he received the following letter:

“Letterhead of NBC News

Earl Ubell, Director

Television News—New York

| May 16, 1974

Dear Mr. William Rusher:

Enclosed please find copies of a contract proposal setting

forth the terms and conditions of your employment with us.

If this proposal meets with your approval, please sign and

return all three copies.

You will note that under the terms of paragraph 16 in this

proposal you are obligated to become a member of AFTRA.

I am aware of your feelings with respect to joining AFTRA

but I am afraid our labor agreement with AFTRA makes it

impossible for us to accommodate them. Your employment

with us falls under the terms of the current AFTRA Code of

Fair Practice for New York Local Television Broadcasting:

and, pursuant to paragraph 84 of that agreement, you must

apply for membership with AFTRA no later than the 30th

day following the beginning of your employment.

Should you elect not to comply with the foregoing, we will

have no option except to discontinue your employment rela-

tionship with us

Sincerely,

Ear. U BELL.

Mr. William Rusher

National Review”

Thus the concession that it could not compel membership was ap-

parently only for the purpose of winning this case. As shown above,

the union continues the practice described supra pages 4-5.

EPF ee ee ee Pee to ok ee oes or eed eed

ed abit 7

It is, we believe, malapropos for the Court of Appeals to

say in this case (footnote 4, page 14b) that it is “judicial

and legislative policy . . . that one specialized agency, the

NLRB, assume the principal responsibility for shaping the

law.” Here the law was conclusively shaped“ by this Court

in 1954 as the parties and the Court of Appeals agreed.

: (3) When administrative procedure involves prior re- f

straint of speech it will be disregarded unless the admin- ;

istrative body functions with the utmost expedition. Freed-

man v. Maryland, 380 U.S. 51 (1965). Here the invoca-

tion of the Board’s procedures would result in uncertainty

and delay far worse than that condemned in Freedman.

The Court of Appeals, recognizing petitioners’ dilemma,

made two suggestions, (a) that petitioners invoke 5 U.S.C.

| § 554(e) (declaratory order section of the Administrative

Procedure Act [16b]), and (b) that petitioners obtain court

injunctions forbidding discharge ( footnote 6; 15b). Con- i

sidering these suggestions: :

PP REE ETS RE ST eR PTS

(a) Under the canon of statutory construction that par- 7

tieular statutes prevail over general ones, the limitations

on the exercise of the Board’s jurisdiction provided by § 10

of the Act and expounded by the dissenting opinions in

Lockridge make invocation of the Board’s declaratory order

jurisdiction a tenuous remedy at best. Thus the decision to

proceed would be at the discretion of the Board’s General

Counsel, ete.“ Indeed as demonstrated by the dissenting

opinion of Justice White, 403 U.S. 314-315, these limita-

tions were deemed by this Court sufficient to warrant rejec- i

tion of the doctrine of pre-emption in situations involving i

values of less importance than freedom of speech. More- 5

over, the Board has not, in so far as our research has

* The remark that Buckley “should have taken his cause to the”

Board (16b) overlooks, we believe, this jurisdictional prerequisite.

SD Tee we

3 , — : u reer

| Se cen OREN LORI. PTET! POE LRG LIL ALLEL LENE OL OSE A ILE EE LILES 1

vee

disclosed, ever found that there was, or had been, an unfair

labor practice under §8(b)(2) until the complainant’s

employrnent had been terminzted or denied—that is, as

relevant to these petitioners there would be no unfair labor

practice suffered by these petitioners until their freedom of

speech had been denied, at least temporarily. Invocation of

the Board’s procedures would thus mean at best a delay

which might in the ordinary case be compensated by a back

pay award but here would mean an abridgement of speech.

Even then, the hearing of their grievance would be subject

to jurisdictional limitations. Under Freedman, therefore,

the administrative procedure is to be disregarded, certainly

not applied to pre-empt the jurisdiction of the courts.

(b) The suggestion that petitioners secure court injunc-

tions against discharge fails to take into account the short

‘erm basis of employment in the TV and radio industry.

Retainers are usually for single appearances only and con-

tracts are not for more than one year. Assuming that the

petitioners were able to secure such injunctions for the brief

remainder of their contracts, those would be the last con-

tracts petitioners would ever get. There is simply too much

talent available to the broadcasting companies to make the

employment of petitioners worth the annoyance and expense

of a lawsuit. For petitioners to sue their employers would,

in their opinion, mean the end of their broadcasting

careers.“

Moreover, securing an injunction is most unlikely be-

cause under § 10 (j) the Board and not the employee may

apply for the injunction. Such injunctions are rarely

* There is irony, we submit, in Judge Friendiy’s comment that

petitioners may avoid “disciplinary sanctions” by resigning from the

union (18bb). Should petitioners resign from the union. they

could no longer get work, a disability surely as effective a sanction

_ as any discipline the union might impose.

granted and have never been granted to protect employment

pending the disposition of an unfair labor practice charge.

On the other hand, in a declaratory judgment action in

court it is not necessary to protect employment by injunc-

tion because the procedure permits employees to remain

members in good standing while pursuing their judicial

remedy. Petitioners have done so in this case.

Tn conclusion jurisdiction is not pre-empted because,

(1) the union has been guilty of “misrepresentations” and

“coercion”, (2) the law on the subject is settled, and (3) re-

course to the Board would involve prior restraint of speech.

Each one of these factors forbids pre-emption.

Jurisdiction. The District Court had jurisdiction under

28 U.S.C. § 1337 over any controversy which concerns

“the validity, construction or enforcement of a statute regu-

lating commerce.” Adams v. International Brotherhood,

262 F. 2d 835, 839 (C.A. 10th, 1959) (here the NLRA);

ef. Shulthis v. McDougal, 225 U.S. 561, 569 (1912). Fur-

ther, the District Court had jurisdiction over the constitu-

tionality of § 8(a) (3) in so far as requiring the payment of

dues. Under United Mine Workers v. Gibbs, 383 U.S. 715

(1966), the District Court has pendent jurisdiction over

the controversy respecting membership, as the controversy

“derives from a common nucleus of operative fact” (page

725).

3. In conflict with applicable decisions of this Court,

the Court of Appeals has failed to afford the employer-

broadcasting companies unrestricted discretion in the

employment of commentators on public affairs in the

discharge of their duty under the Fairness Doctrine.

The District Court developed this theory at length

(pages 46c et seq.).

This Court, in its decision in Columbia Broadcasting

System v. Democratic National Committee, 412 U.S. 94

(1973), reached a similar conclusion respecting the Fair-

ness Doctrine. As that decision is so recent we do not quote

any of the numerous passages supporting this view.

CONCLUSION

The Court should grant a writ of certiorari to review

the decision of the Court of Appeals herein.

Respectfully submitted,

C. DICKERMAN WILLIAMS

Counsel for Petitioners

444 Madison Avenue

New York, N.Y. 10028

JOHN L. KILCULLEN,

EDITH HAKOLA,

of Counsel.

New York, N.Y.

September, 1974

Or ts

Appendix A

TITLE 28, UNITED STATES CODE

§ 1331. “(a) The district courts shall have orig-

inal jurisdiction of all civil actions wherein the

matter in controversy exceeds the sum or value of

$10,000, exclusive of interest and costs and arises

under the Constitution laws or treaties of the United

States.”

§ 1337. “The district courts shall have original

jurisdiction of any civil action or proceeding arising

under any Act of Congress regulating commerce or

protecting trade and commerce against restraints

and monopolies.”

TITLE 29, UNITED STATES CODE

§8(b) “It shall be an unfair labor practice for

a labor organization or its agents...

(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of sub-

section (a) (3) of this section or to discriminate

against an employee with respect to whom member-

ship in such organization has been denied or termi-

nated on some ground other than his failure to

tender the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or re-

taining membership; . . .”

TITLE 47, UNITED STATES CODE

§ 315. “. . . Nothing in the foregoing sentence

shall be construed as relieving broadcasters in con-

nection with the presentation of newscasts, news in-

laa

terviews, news documentaries, and on-the-spot: cov-

erage of news events, from the obligation imposed

upon them under this chapter to operate in the

public interest and to afford reasonable opportunity

for the discussion of conflicting views on issues of

public importance.” (This section is quoted in full

at 50c-51c.)

Appendix B

Opinion of Court of Appeals (Waterman, J.)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 81 September Term, 1973

(Argued November 7, 1973 Decided April 30, 1974.)

Docket No. 73-1667

—

WILLIAM F. BUCKLEY, JR., NATIONAL REVIEW, INC.,

and M. STANTON EVANS,

Plaintiffs-Appellees,

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Defendant-A ppellant.

NATIONAL LABOR RELATIONS BOARD,

AMERICAN CIVIL LIBERTIES UNION,

Amici Curiae

Before:

WATERMAN, FRIENDLY and TIMBERS,

Circuit Judges.

Appellant labor union appeals from judgment order

below, United States District Court for the Southern Dis-

trict of New York, Brieant, J. The district court held that

appellees’ rights under the first amendment to the U.S.

Constitution were infringed by appellant labor union, a

union having “union shop” agreements with media upon

which appellees appeared. Upon appeal by the union, it

is held not to be an infringement of appellees’ first amend-

ment rights to require them to pay dues to the union, and

that as to other claims of infringement which are arguable

unfair labor practices the National Labor Relations Board

has primary jurisdiction.

Opinion of Court of Appeals (Waterman, J.)

Reversed and remanded.

C. DICKERMAN WILLIAMS, BAKER, NELSON & WIL-

LIAMS, New York City; John L. Kilcullen, Edith

Hakola, (District of Columbia Bar), for Ap-

pellees.

ALEXANDER M. BICKEL, MORTIMER BECKER, EDWARD

SCHLESINGER, ROBERT M. JAFFE, New York City,

for Appellant.

GLEN M. BENDIXSEN, Chief, Spec. Litigation;

Stephen C. Yohay, Attorney; Peter G. Nash,

General Counsel; John S. Irving, Deputy Gen-

eral Counsel; Patrick Hardin, Assoc. General

Counsel; Elliot Moore, Asst. Gen. Counsel, for

National Labor Relations Board.

MELVIN L. WULF, New York City, for American

Civil Liberties Union.

WATERMAN, Circuit Judge:

—

This is an appeal by the labor organization, American

Federation of Television and Radio Artists (AF TRA)

from an order entered in the United States Distriet Court

for the Southern District of New York, declaring, in part

on constitutional grounds, that any provision of any col-

lective bargaining agreement “requiring, or purporting to

require, that [appellees William F. Buckley, Jr. and M.

Stanton Evans] continue to be members of [appellant

union, American Federation of Television and Radio Art-

ists] pay dues to [appellant union] and/or comply with

{appellant union’s] orders and regulations, as a condition

of” appearing on radio or television in their roles as paid

commentators on public affairs is “void and of no effect.”

Opinion of Court of Appeals (Waterman, J.)

Insofar as the appellees’ responsibility to tender periodic

dues to the union is nullified by the judgment below, we

reverse on the merits. Moreover, inasmuch as we hold that

the district court was without jurisdiction to adjudicate the

other issues raised by the appellees’ complaints, which per-

tained to compulsory union membership and to compulsory

compliance with union orders and regulations, we also re-

verse the remaining portions of the district court’s judgment.

With great care the district court accurately set forth

the specific facts and circumstances from which this liti-

gation arose. See 354 F. Supp. at 826-836.“ No useful pur-

pose would be served by a detailed repetition of the pres-

entation so articulately and comprehensively set forth in

the opinion below. Moreover, the relative narrowness of

the decision we reach today renders immaterial for our

purposes much of the factual background developed by

the district court. We shall therefore confine our discus-

sion of the facts to those which are within the ambit of

the limited role we think a federal court can play in this

dispute at the present time.

Both appellees are well-known articulate exponents of

a “conservative” political philosophy. They are engaged

in a plethora of activities, amongst which are regular ap-

pearances on radio and television. Mr. Buckley is the

host of his own television program, “Firing Line,” in which

he usually engages in spirited argument guest spokesmen

of “liberal” persuasion. Mr. Evans appears as a partici-

pant on the CBS radio series “Spectrum,” a program in

which on a regular basis a number of spokesmen for differ-

ing political and social philosophies express their opinions

on topies of their own choosing.

The employing parties with whom Buckley and Evans

negotiated their contracts of employment have collective

* Pages 21c-43c hereof.

a lt tales

„ i ee eee

r A ee es ee

Opinion of Court of Appeals sia J.)

bargaining agreements with AFTRA. These latter agree-

ments, by incorporation of the union’s “Code of Fair Prac-

tice,” obligate the employers to employ only members of

AFTRA or persons who become members of AFTRA within

thirty days after the commencement of the employment

relationship. This “union shop” provision is authorized,

but not required, by Section 8(a) (3) of the National Labor

Relations Act (“NLRA”), 29 U.S.C. §158(a) (3), which

reads:

(a) It shall be an unfair labor practice for an em-

ployer—

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

Act, or in any other statute of the United States,

shall preclude an employer from making an agree-

ment with a labor organization (not established,

maintained, or assisted by any action defined in sec-

tion 8(a) of this Act as an unfair labor practice) to

require as a condition of employment membership

therein on or after the thirtieth day following the

beginning of such employment or the effective date

of such agreement, whichever is the late...

Provided further, That no employer shall justify

any discrimination. against an employee for non-

membership in a labor organization (A) if he has

reasonable grounds for believing that such member-

ship was not available to the employee on the same

terms and conditions generally applicable to other

members, or (B) if he has reasonable grounds for

believing that membership was denied or terminated

for reasons other than the failure of the employee

to tender the periodic dues and the initiation fees

20 LAS LOOT IST ARE r

Opinion of Court of Appeals (Waterman, J.)

uniformly required as a condition of acquiring or

retaining membership:

In addition, the union’s constitution purports to impose

upon its members responsibilities to the unicn in excess

of those contemplated by §8(a) (3). For example, Article

XVIII, Sec. 1 of the AFTRA Constitution describes the

punishments to which a union member is subject for failure

to fulfill those responsibilities:

Any member who shall be guilty of an act, omission,

or conduct which in the opinion of the Board is pre-

judicial to the welfare of the Association, or of any

of its Locals, or of any of its members, as such, or

any member who shall fail to observe any of the re-

quirements of the Constitution, or of any By-Laws,

rules, regulations or orders lawfully issued by the

Association, any Local or any duly authorized com-

mittee or agent of said Association or Local, or any

member who shall in any way be indebted to the

Association or any Local thereof, may, in the dis-

cretion of the Board, be either fined, censured, sus-

pended or expelled from membership. . . .

In their complaints in the district court the appellees

challenged alleged requirements allegedly imposed upon

them, that they be members of the union, that they pay

dues to the union, and that they comply with all union

orders and regulations. They claimed that these require-

ments which they allege were sought to be imposed upon

them by the union constituted unreasonable restraints on

the right of free speech and deprived them of their prop-

erty without due process of law. The imposition of these

requirements was asserted to have been “accomplished by

the defendant AFTRA acting under the authority of the

National Labor Relations Act.”

Opinion of Court of Appeals (Waterman, J.)

As we have already stated, the expansive relief granted

by the district court absolved appellees from union mem-

bership, from paying dues, and from complying with

union regulations. For reasons that appear infra we hold

that as to the issues of compulsory membership and com-

pliance with union regulations, the National Labor Re-

lations Board (“NLRB”) had primary jurisdiction under

the preemption principle of San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 245 (1959). Thus we

hold that the federal district court exceeded its power in

deciding these two issues, and we do not reach the merits

with respect to them. Regarding the dues requirement,

however, we do reach the merits and hold, contrary to the

result reached by the district court, that this requirement

does not abridge appellees’ first amendment right of free

speech.

It is elementary constitutional doctrine that the first

amendment only restrains action undertaken by the Gov-

ernment. Railway Employes’ Dep’t v. Hanson, 351 U.S.

225 (1956); Linscott v. Millers Falls Co., 440 F.2d 14 (1

Cir.), cert. denied, 404 U.S. 872 (1971). There is, how-

ever, a crucial corollary to this rudimentary tenet. When

private action becomes imbued with a governmental char-

acter, or when the Government significantly insinuates it-

self into the operative activities of private parties, then

action by private parties may be regarded as “state ac-

tion” and, if so, will be subject to all the constitutional

limitations on governmental action. Evans v. Newton,

382 U.S. 296,299 (1966); Burton v. Wilmington Parking

Authority, 365 U.S. 715, 722 (1961). Here it is alleged

that the requirement found in the AFTRA Code of Fair

Practice that dues be paid is “accomplished by the defend-

ant AFTRA acting under the authority of the National

Labor Relations Act.” It is true that 58 (a) (3) expressly

„r

Opinion of Court of Appeals (Waterman, J.)

authorizes union shop agreements which may require that

employees pay union dues. The section also specifically

permits the discharge of an employee who fails to comply

with such a dues requirement. Appellees contend that

this congressional authorization makes a union shop pro-

vision contained in a collective bargaining agreement

negotiated between private parties “state action”. In sup-

port of this contention, appellees rely primarily on Rail-

way Employes’ Dep’t v. Hanson, supra, and Linscott v.

Millers Falls Co., supra. In Railway Employes’ Dep’t,

the Supreme Court held that the Railway Labor Act pro-

vision comparable to § 8(a) (3) of the National Labor Re-

lations Act transmutes otherwise private union shop agree-

ments into “governmental action.” The Railway Labor

Act, however, explicitly provides that union shops are

permissible despite any state law that would otherwise

prohibit them, whereas Section 14 of the NLRA, on the

other hand, declares that a state “right to work” law

forbidding union shops will not be superseded by § 8(a) (3).

However, the First Circuit in Linscott v. Millers Falls Co.,

supra, quoting Railway Employes’ Dep’t v. Hanson, supra

at 232, ascribed little significance to this distinction be-

tween the two labor statutes, and found that a union shop

agreement under the NLRA constituted government ac-

tion because “the federal statute is the source of the power

and authority by which any private rights are lost or sac-

rificed.” 440 F.2d at 16. Appellees would have us adopt

this reasoning, and after first holding that the union shop

agreement is subject to constitutional scrutiny, then pro-

ceed to rule in their favor by holding that the dues re-

quirement violates the first amendment.“

1. The Tenth Circuit disagrees with the First and has held that

§8(a)(3) does not render union shop agreements “government

action.” Reid v. McDonnell Douglas Corp., 443 F.2d 408, 409-11

(10 Cir. 1971).

Opinion of Court of Appeals (Waterman, J.)

In order to establish jurisdiction to reach the merits

of this first amendment claim, it might at first blush appear

we must resolve the “government action” issue. But this

is not necessarily so.

The line between a jurisdictional issue unrelated to the

merits of an action and one which depends upon adjudica-

tion of the ultimate merits of a case is sometimes a fine

line. In fact, many jurisdictional problems cannot be un-

qualifiedly inserted into one category or the other. It

often is difficult to resolve jurisdictional issues without, in

effect, reaching determinations on the merits. See, e.g.,

Comment, 47 N.Y.U.L.Rev. 349, 354 (1972). In Bell v.

Hood, 327 U.S. 678 (1946), the Supreme Court sought to

alleviate some of these conceptual incongruities by deveiop-

ing a practical approach. This approach allows a federal

court to assume jurisdiction over an action alleging viola-

tion of the U.S. Constitution if satisfied by an initial

cursory examination that there is, on the merits, a justici-

able issue. In Bell the plaintiffs sought money damages

from the defendants, Federal Bureau of Investigation

agents, who were alleged to have improperly searched the

plaintiffs’ premises and to have falsely imprisoned the

plaintiffs in derogation of their fourth and fifth amend-

ment rights. The defendants argued that the fourth and

fifth amendments represent proscriptions “against the

federal government as a government” and could not sup-

port a damage suit against particular government employ-

ees for allegedly violating those proscriptions. The Court

approached the issue of whether such a suit, bottomed upon

alleged violations of constitutional limitations, was main-

tainable—an issue somewhat analogous to the issue of

whether a suit alleging violation of the first amendment

can be maintained against the private party, AFTRA,

10b

Opinion of Court of Appeals (Waterman, J.)

here. In Bell the Court held that, in the circumstances

there alleged, federal jurisdiction to adjudicate the plain-

tiffs’ claims on the merits could only be defeated by a show-

ing that an alleged violation of the Constitution is really

immaterial to the practical resolution of the litigation and

was raised solely for the purpose of achieving jurisdiction,

or by a showing that the claim is wholly insubstantial

and frivolous. Id. at 682-683.

So here, when we apply the practical test of Bell, we

conclude, without having to decide the issue of whether

AFTRA’s dues requirement is “government action,” that

the district court had jurisdiction to adjudicate the appel-

lees’ claims that AFTRA’s dues requirement impinges upon

appellees’ first amendment rights. First of all, the consti-

tutional claim is neither “immaterial” nor presented “solely

for the purpose of obtaining jurisdiction.” More impor-

tantly, although the government action aspect of the claim

may be a close question, the claim is not an insubstantial

or frivolous one. Indeed, the contrary is true. For in-

stance, an examination of the contrasting views expressed

in the majority and concurring opinions in Linscott v. Mil-

lers Falls Co., supra, convinces us that the claim appellees

here assert under the Constitution is not made insubstan-

tial and frivolous because of its “government action”

aspect. é;

Having established that we have jurisdiction to de-

cide whether AFTRA’s requirement that appellees pay its

prescribed dues violates appellees’ first amendment rights,

we hold there is no violation. In so deciding, we do not

need to reacth the issue of whether government action is

involved. We conclude that even if it were, which we do

not intimate, the dues requirement is not constitutionally

infirm.

11b

Opinion of Court of Appeals (Waterman, J.)

Acts of speech and of expression, although protected by

the first amendment, are not so exalted that they can never

be, even indirectly, obstructed. Cox v. New Hampshire,

312 U.S. 569 (1941). Indeed, even with reference to free-

dom of the press, the Supreme Court has recently reaffirmed

what has long been understood to be the law: “[O]therwise

valid laws serving substantial public interests may be en-

forced against the press as against others, despite the pos-

_ sible burden that may be imposed.” Branzburg v. Hayes,

408 U.S. 665, 682-683 (1972). More specifically, where

there is a proper governmental purpose for imposing a

restraint and where the restraint is imposed so as not to

“snwarrantedly abridge’ acts normally comprehended

within the first amendment, there is no abridgment of first

amendment rights. Cox v. New Hampshire, supra at 574.

Nor is there any abridgment of first amendment rights

arising from the congressional authorization granting a

union the power to collect dues from employees in a nion

shop.” The congressional purpose in authorizing manda-

tory union dues is surely a permissible one, for Congress

was understandably concerned with minimizing industrial

strife and thereby insuring the unimpeded flow of com-

merce. It was the legislative judgment that these goals are

most easily realized if a suitable collective bargaining ap-

paratus exists, see, e.g., International Association of Ma-

chinists v. Street, 367 U.S. 740, 760 (1961), and so the

national labor laws provide for an exclusive bargaining

agent to represent each discrete employee bargaining unit.

See, e.g., §9(a) of the NLRA, 29 U.S.C. §159(a). To en-

able these agents to fulfill their statutory responsibility to

represent all the employees while collectively bargaining

with the employer, the statutes permit the levying of man-

datory dues on all employees who will reap the benefits of

the union’s representation of them in the contract negotia-

12b

Opinion of Court of Appeals (Waterman, J.)

tions with the employer. A required tolerance of “free

riders,” i.e., those who enjoy the benefits of the union’s

negotiating efforts without assuming a corresponding por-

tion of the union’s financial burden, would result not only

in flagrant inequity, see, e. g., NLRB v. General Motors

Corp., 373 U.S. 734, 740-743 (1963) ; Radio Officers’ Union

v. NLRB, 347 U.S. 17, 41 (1954). but might also eventually

seriously undermine the union’s ability to perform its bar-

gaining function. It is thus manifest that the statutory

treatment of mandatory union dues serves a “substantial

public interest.”

Moreover, we find that the means adopted to achieve this

proper purpose of reducing industrial strife are reasonable,

and do not “unwarrantedly abridge” free speech. The dues

here are not flat fees imposed directly on the exercise of

a federal right. See Murdock v. Pennsylvania, 319 U.S.

105, 113-114 (1943). To the contrary, assuming arguendo

that government action is involved here, the dues more

logically would constitute the employee’s share of the ex-

penses of operating a valid labor regulatory system which

serves a substantial public purpose. If there is any burden

on appellees’ free speech it would appear to be no more

objectionable than a “nondiscriminatory [form] of general

taxation” which can be constitutionally imposed on the com-

munication media. Branzburg v. Hayes, 408 U.S. 665, 683

(1972); Grosjean v. American Press Co., 297 U.S. 233,

250 (1936).

Appellees also contend that they did not seek, and do

not desire, to be represented by the union and that as they

have not derived any substantial benefit from the union’s

representation they are not “free riders.” The district

judge accepted this contention, and although he found that

the appellees derived some benefit from their memberships

in union pension plans, he regarded this as not being sub-

e OR AA ELI

13b

Opinion of Court of Appeals (Waterman, J.)

stantial enough to make the appellees “free riders.“ We

disagree with the district court. There is no rational basis

for distinguishing between the degrees of benefit one enjoys

as a result of a union’s bargaining efforts on his behalf.?

Turing now to the allegations that on pain of loss of

employment the requirements of compulsory union mem-

bership and compulsory compliance with union regulations

also violate the constitutional rights of plaintiffs to be

employed by the media, we hold that the district court did

not have jurisdiction to adjudicate these matters. Although

appellees’ complaints do not explicitly allege violations of

§§8(a) (3) and 8(b) (2), they do aver the commission of

acts which we find are “arguable” unfair labor practices

under those sections of the NLRA. When unfair labor

practices are alleged “the federal courts must defer to the

exclusive competence of the National Labor Relations

Board.” San Diego Building Trades Council v. Garmon,

supra at 245; accord, Amalgamated Ass’n of Street, Elec.

Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274

(1971).

Both Buckley and Evans claim that they have not only

been compelled to pay dues to the union but have also been

2. Of course we ce not decide whether employees who have

derived no demonstrable benefit from a union’s efforts are “free

riders.“

3. Such allegations are unnecessary.

Assuredly the proposition that Lockridge’s complaint was

not subject to the excluisve jurisdiction of the NLRB because

it charged a breach of contract rather than an unfair labor

practice is not tenable. Pre-emption, as shown above, is

designed to shield the system from conflicting regulation of

conduct. It is the conduct being regulated, not the formal

description of governing legal standards, that is the proper

focus of concern. Amalgamated Ass'n of Street, Elec. Ry.

& Motor Coach Employees v. Lockridge, 403 U.S. 274, 292

(1971).

14b

Opinion of Court of Appeals (Waterman, J.)

“required” to join the applicable local organization and to

comply with union rules and regulations.“ The union does

not deny that its representatives informed Buckley that the

ultimate penalty for failing to remain a “full-fledged”

member would be his discharge from employment. It is

abundantly clear that an “arguable” unfair labor practice

would result if the union should carry out this threat.“

4. The imposition of the “requirements” of membership and

compliance with union rules is, as we shall demonstrate, conduct by

which the union arguably violates §8 of the National Labor Rela-

tions Act. As such, it is subject to the preemptive jurisdiction of

the NLRB, San Diego Building Trades Council v. Garmon, supra.

Abstention by the federal district courts is necessary to prevent

“conflicting regulation of conduct.” Amalgamated Ass'n of Street,

Elec. Ry. & Motor Coach Employees v. Lockridge, supra at 292.

The dues requirement which we have already considered stands on

a different footing, however. Not only is that requirement not

arguably violative of § 8, as it must be for the jurisdiction of a federal

district court to be preempted, it is incontestably authorized by that

section. Deferring to the NLRB on the dues question is thus

mandated neither by the Garmon test itself nor by the Garmon phil-

osophy_ of fostering uniform and consistent treatment of the modes

of conduct that Congress has sought to prohibit in § 8 of the National

Labor Relations Act.

Furthermore, our retention of jurisdiction over the dues claim

does not render this case a proper occasion for the invocation of the

doctrine of pendent jurisdiction. Application of the doctrine is dis-

cretionary Winnick v. Manning, 460 F.2d 545, 550 (2 Cir. 1972);

C. Wright, The Law of Federal Courts § 19, at 64 (2d ed. 1970),

and seems particularly inappropriate under the circumstances here

where the membership and rules compliance issues are distinct from

the dues claim, and do not constitute alternative theories on the same

pivotal facts as the dues claim, and where the judicial and legislative

policy favoring uniform treatment of conduct arguably constituting

unfair labor practices demands that one specialized agency, the

NLRB, assume the principal responsibility for shaping the law.

5. See NLRA §§ 8(a) (3), 8(b) (2), 29 U.S.C. §§ 158(a) (3),

(b) (2); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 197 n.

37 (1967); NLRB v. General Motors Corp., 374 U.S. 734, 742

1963. Indeed, in its brief, and at oral argument in this court the

(Footnote continued on next page)

15b sie

Opinion of Court of Appeals (Waterman, J.)

Buckley apprises us that he refrained from resigning from

the union because he feared that he would suffer loss of

media employment and also incur the significant hardships

that would undoubtedly accompany such a discharge.“

(Footnote continued from previous page)

union concedes that “the imposition of obligations of membership

other than dues-payment will depend on continued full-fledged

membership, which . . . cannot be imposed on pain of loss of employ-

ment.”

The union also acknowledges that Buckley and Evans can avoid

any other sanctions which the union might seek to impose on them

by resigning from “full-fledged membership while continuing to pay

dues.” The union attempts to qualify this concession, however, by

noting that whether Buckley and Evans can freely exercise [the

right to resign from full-fledged membership] depends on circum-

stances.” The union’s assumption that Buckley and Evans can

currently be considered “full-fledged” members is suspect. At least

in Buckley’s case, the misrepresentations made to him that to retain

his employment he was required to be and to remain a full-fledged

AFTRA member appear to be sufficient to vitiate any “consent” he

may have given to becoming and remaining a full-fledged member.

Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357, (9 Cir. 1970).

As to whether there are issues of arguable unfair labor practices,

we would point out that the union may have already violated § 8(b)

(1) of the NLRA by “coercing” Buckley, and possibly Evans, into

becoming full-fledged members of the union. Under §7 of the Act,

Buckley apparently had the right to refrain from becoming a full-

fiedged member. The union’s misrepresentations to him regarding his

obligations to the union appear to have effectively coerced Buckley

into incurring responsibilities he was not required to accept. Coercion

may be “inferred” from the success of these misrepresentations.

Sheraton-Kauai Corp. v. NLRB, supra at 1357.

6. We note that the appellees’ right to continued media employ-

ment will not be endangered should they seek to crystallize their

controversies with the union by resigning from full-fledged union

membership. As long as they forward dues to the union they through

NLRB intervention, should be able to obtain a federal district court

injunction against their discharge from employment, see 29 U.S.C.

§ 160(j), pending disposition of any litigation which might follow

resignations. A threat of irreparable injury would exist, and, as we

have explained, and as the union has conceded, there would be an

excellent chance that Buckley and Evans would succeed on the

merits of a claim that the payment of dues is a sufficient compliance.

Remer n arg ne . —

16b

Opinion of Court of Appeals (Waterman, J.)

Buckley’s decision not to resign was not an unreasonable

decision, and it did not bar him from seeking declaratory

relief. But inasmuch as the union conduct to which Buck-

ley objects constituted arguable unfair labor practices, his

selection of forum was incorrect. He should have taken his

cause to the National Labor Relations Board, an adminis-

trative agency fully capable of granting declaratory relief

to him if circumstances warrant such relief. See 5 U.S.C.

6554 (e).

The only oral representations made to Evans were

those made by his prospective employer. The substance of

these remarks was that before Evans could appear on the

“Spectrum” Radio Series, Evans had to join the union

because the employer’s collective bargaining agreement

mandated it. It also seems that Evans, as well as Buck-

ley, believes that the requirements of compulsory member-

ship, and the duty to comply with union rules and regula-

tions, are imposed on him by the combination, on the one

hand, of 4 84 of AFTRA’s Code of Fair Practice to which

Evans’s employer is subject under the collective bargaining

agreement it has with AFTRA, and, on the other, Article

XVIII of the AFTRA Constitution, to which Evans him-

self would appear to be subject as a “full-fledged” member

of the union. Section 84 is the compulsory unionism

clause, i.e., the provision obligating the employer to em-

ploy only those persons who are AFTRA members in good

standing, or those who become such AFTRA members

within thirty days of the inception of the employment re-

lationship. Article XVIII of the AFTRA Constitution,

quoted supra, gives the union the power to expel from

membership any member who “shall fail to observe” any

union rule or regulation. At first glance, the union would

seem to have attempted to reserve to itself the power to

force an employer to discharge an employee by the simple

17bb

Concurring Opinion of Friendly, J.

expedient of expelling the employee from union member-

ship for any real or imagined infraction of its rules or

regulations. On the other hand, §§ 8(a) (3) and 8 (b) (2)’s

substantial limitation on the ability of the union to so affect

the employment relationship appears to receive implicit

recognition in 5 84 itself, which provides for automatic

amendment of the section if the NLRA should be “re-

pealed or amended so as to permit a stricter union security

clause (emphasis added).” Evans's case is distinguishable

from Buckley’s case in that Evans’s case relies prin-

cipally on these bread union-drafted documents rather

than on the highly specific warnings Buckley received.

However, in any event, it is the function of the NLRB

to ascertain whether Evans’s controversy is sufficiently

developed to enable it to declare the rights of the parties,

and, if the controversy has so evolved, whether the union

commits or would commit unfair labor practices by in-

dulging in the conduct about which Evans is apprehensive.

Reversed and remanded.

FRIENDLY, Circuit Judge, concurring:

I concur in the result and in the majority’s holding

that 58 (a) (3) is constitutional insofar as it permits a

union to require employees in a union shop to pay ordinary

dues and fees even if the employees are radio and television

commentators. However, I disagree that the issues of

compulsory membership and compliance with union regu-

lations, as presented on this appeal, fall within the exclu-

sive jurisdiction of the National Labor Relations Board.

The appellees sought a declaratory judgment that AFTRA’s

union security agreement, authorized by § 8(a) (3) of the

Act, violated their constitutional rights, in part because

it would expose them to union discipline and require them

— 5

* ee 8

18bb

Concurring Opinion of Friendly, J.

to become union members. Federal courts must give way

to the National Labor Relations Board when the claim is

that the conduct in question violates the unfair labor prac-

tice provisions of the NLRA. And to the extent that the

appellees contend that the union would be committing an

unfair labor practice by imposing fines or otherwise disci-

plining them, I agree that their claim is preempted. How-

ever, the real thrust of appellees’ argument seems rather to

be that the Act authorizes the union to discipline them and

is therefore unconstitutional. Since the preemption doc-

trine does not extend to constitutional attacks on the

National Labor Relations Act, see Seay v. McDonnell

Douglas Corp., 427 F.2d 1002-04 (9 Cir. 1970) ; Lewis v.

AFTRA, 71 Mise. 2d 253, 336 N.Y.S.2d 56 (Sup. Ct. 1972),

aff'd, 41 App. Div. 2d 707, 341 N.Y.S.2d 625 (Ist Dep't

1973), the district court’s jurisdiction over the constitu-

tional claims in this case was not preempted. However,

as the court points out in footnote 5, and as the union

concedes, an employee under the union shop provision of

the Act need not accept “full-fledged” membership in the

union, and thus can avoid the disciplinary sanctions to

which “full-fledged” members may be subjected. Under

this construction, I see no constitutional infirmity in 4 8(a)

(3) even as applied to persons whose First Amendment

protection is of peculiar importance.

19¢

Appendix C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

71 Civ. 3920

M. STANTON EVANS,

Plaintiff,

—against—

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Defendant.

WILLIAM F. BUCKLEY, JR. and NATIONAL REVIEW, INC.,

Plaintiffs,

—against—

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTs,

Defendant.

Opinion of District Court (Brieant, J.)

These causes have been consolidated at the instance of

plaintiffs by an order of this Court (Pierce, J.) made

December 3, 1971.

By order tos „ cause dated March 3, 1972, issued by

Judge Tenney, plaintiffs in each action moved for summary

judgment to be entered under Rule 56, F.R.Civ.P., “de-

claring void, illegal and unconstitutional 48(a)(3) [29

U.S.C. 5158 (a) (3)] of the National Labor Relations Act,

insofar as that statute may be deemed to authorize de-

fendant’s agreements with networks, broadcasters, stations

and other employers in the television and radio industry

which require or may purport to require plaintiffs . .. to

continue to be members of the defendant .. pay dues...

and comply with defendant 's] regulations and orders zs a

condition of the production or broadcasting certain pro-

grams known as ‘Firing Line’, ‘Spectrum’ and/or other

„„

20e

Opinion of District Court (Brieant, J.)

programs on which plaintiffs ... may appear, and further,

declaring that plaintiffs Buckley and National Review, Inc.

may continue to make and sell the package show Firing

Line and that plaintiffs . . . may continue to appear on

television and radio as they see fit, irrespective of continued

membership in defendant, the payment by them of . . . dues

and their compliance with defendant[’s] regulations and

orders, all without harassment or interference by defen-

dant ... and further enjoining defendant . . from threat-

ening any network, broadcaster, station or other employer

in the television and radio industry with any proposed ac-

tion or otherwise or taking any action by reason of its em-

ployment of or intended employment of plaintiffs . . . on

any television or radio show, or its use, or intended use, of

a package show in which plaintiffs ... appear, and further

enjoining defendant . . from threatening to take or taking

punitive action of any kind whatever against plaintiffs

should piaintiffs Buckley and Evans withdraw from mem-

bership in defendant .. . or fail to pay dues .. . or comply

with any order of defendant. .. .”

By notice of motion dated May 3, 1972, defendant also

moved for summary judgment dismissing the complaints

and the consolidated action for “lack of jurisdiction, [and]

failure to state a claim against defendant upon which relief

can be granted.”

Both causes have been at issue for some time. Adequate

discovery appears to have been conducted by deposition and

interrogatories. With a reservation, not considered signifi-

cant for purposes of this motion, ! all parties concede that

there are no contested material issues of fact. The Court

finds that no contested issues of fact prevent disposition of

these motions. Both plaintiffs seek to enforce rights said to

be protected pursuant to the First, Fifth and Ninth Amend-

1. See infra p. 6, et seq.

21e

Opinion of District Court (Brieant, J.)

ments to the Constitution of the United States, and more

specifically, First Amendment rights.

The Parties

M. Stanton Evans, plaintiff in 71 Civ. 3920, is a paid

radio commentator, or analyst, of news, current events,

politics, social, economic, religious, moral and ethical prob-

lems—all of the great issues which divide us.“ Pursuant

to written contract with CBS News, a division of the

Columbia Broadcasting System which owns and operates

radio stations, and furnishes material which may be broad-

cast pursuant to license by other affiliated stations, Evans,

referred to therein as “Artist”, on his own responsibility,

and not as a “staff employee”, writes his own material and

selects his own subject matter. He enjoys substantial

2. These actions appear to be within the purview of 28 U.S.C.

§ 2403, because the litigation draws in question the constitutionality of

an Act of Congress affecting the public interest. This Court, on

its own motion, raised the question of applicability of § 2403 of Title

28, which permits intervention of the United States as a party in

such an action. After consultation with counsel, this aspect of the

litigation was, pursuant to Rule 24 of the General Rules of this

District, brought to the attention of Chief Judge Edelstein. On

October 18, 1972, Chief Judge Edelstein issued a certificate, pur-

suant to § 2403, and stayed all further proceedings for a period of

thirty (30) days from that date, subject to enlargement of time,

so as to permit the motion to intervene. No such motion was made.

The issues have been fully briefed. Defendant is entirely cap-

able of representing the public interest in the action, and the liti-

gation is adversary, and not collusive.

3. For brevity, one following that calling is hereafter referred

to merely as a “commentator”, or “analyst”. Excluded from the

definition of commentator are those who merely read news or com-

ments prepared by others, and for which they have no substantial

editorial responsibility. Also excluded, unless the context indicates

otherwise, are those who comment only on such uncontroversial

subjects as the weather, and with respect to whom no personal First

Amendment rights could be asserted.

—

—]]—

Opinion of District Court (Brieant, J.)

freedom of expression. While CBS News personnel, in

their discretion, may determine whether any program shall

be broadcast, CBS may not, without Evans’ prior consent,

alter Evans’ original creative work. Evans, pursuant to

the contract, holds CBS harmless for damages and expenses

including counsel fees, arising out of the use of any ma-

terials furnished by him or words spoken by him [e.g.

plagiarism or slander].

The viewpoint and position (or “bias”) which Evans

reflects is conservative. He alleges that he is... generally

considered a spokesman for the conservative point of view

on politics and national and international affairs”.

Broadcasting is neither his primary nor full-time occu-

pation, which is that of editor of the Indianapolis (Ind.)

News, a substantial daily newspaper. He is a prominent

national figure, and is an author of books and essays, a lec-

turer and debator. It is this independent status, and his

standing as author and lecturer, which creates public in-

terest in his opinions, which are not those of the producer,

station or network.

William F. Buckley, Jr., plaintiff in 71 Civ. 146, is a

public figure. He has been a candidate for Mayor of New

York City and speaks regularly on current events, politics,

social, economic and religious subjects. He appears with

some frequency on television, and as a paid lecturer. He

writes a syndicated newspaper column entitled “On The

Right“, published three times a week by over 320 news-

papers, in which he writes as a commentator and analyst

of news, current events, politics, social, economic, religious,

moral and ethical problems. He is the principal participant

of what he characterizes as a TV Show” called “Firing

be eng

23¢

Opinion of District Court (Brieant, J.)

Line“,“ and appears often as a guest with or without pay on

other television programs, particularly television panel dis-

cussions of public events and issues.

He has written magazine articles and books. It is diffi-

cult to state with certainty what his primary or full-time

occupation is; however, he serves as editor of a magazine,

“National Review”, and, like Evans,-is probably not en-

gaged in broadcasting as his primary or full-time occu-

pation.

Buckley too, is a conservative. He has submitted on the

motion a description of his professional standing prepared

by Professors Leonard W. Levy and Arthur Young, General

Editors of the American Heritage series of books as a fore-

word to the book “Did You Ever See a Dream Walking?”,

an anthology of American conservative opinion of which

Buckley was the editor. Professors Levy and Young write

in relevant part:

“Mr. Buckley is the foremost expositor of rational,

humanistic conservative thought in America today.

He is a man for all conservative seasons: author,

politician, TV star, popular lecturer and editor-in-

chief of the nation’s leading journal of conservative

opinion, National Review. In every capacity he is

an outstanding educator, though not an academician.

Famed as a tough-minded adversary, an entertain-

ing and brilliant conversationalist, and a scintillat-

ing stylist, he is also an enormously learned man and

4. The Court has never watched “Firing Line”, but accepts plain-

tiff s description of this program as essentially serious, and issue

oriented, rather than mere entertainment. While a “show” is de-

fined as a “theatrical production”, it also includes ſany] radio, or

television program” and “any kind of public exhibition or exposition”.

See Random House Dictionary of the English Language, p. 1320,

New York 1966.

240 2 - —

Opinion of District Court (Brieant, J.)

a serious thinker. His introduction to this book is

written with his characteristic charm, wit, ego,

trenchancy, and, of course, strong bias. . Mr.

Buckley is eclectic. ... He flatly rejects the in-

tolerant and rigid dogmatism of Ayn Rand, the

extreme and unrealistic anti-statism of conserva-

tives who verge on anarchism, and the apoplectic

and reckless reactionarism (sic) of the John Birch-

ers with their conspiracy theories. Mr. Buckley’s

conservatism shares nothing in common with the

conservatism of Big Business or of the self-appointed

super-patriots, bigots and xenophobes.“

Plaintiff National Review, Inc., of which Buckley is

President, and sole shareholder, is a co-producer of “Firing

Line“, together with RKO General, Inc., a broadcaster.

“Firing Line” is a regular television program known in the

television industry as a “package show” because it is pro-

duced and broadcast pursuant to contract. On about March

31, 1971, Southern Educational Communications Associa-

tion (“SECA”), supplanted RKO General as to future

Firing Line programs, under a new contract between Na-

tional Review and SECA, pursuant to which Firing Line

was to be produced for distribution to over 200 non-com-

mercial TV stations, by SECA, whose performance was

guaranteed by the Corporation for Public Broadcasting.

Production originally took place in New York, but later,

by contract, production was effec. uated in numerous places,

and at various television studios or stations throughout the

United States.

Defendant American Federation of Television and

Radio Artists (“Aftra”) is an unincorporaied association

organized under the laws of the State of New York and

affiliated with the AFL-CIO. It is in essence a labor union,

25¢

Opinion of District Court ( Brieant, J.)

or collective bargaining agent, for artists engaged in the

fields of radio and television. It has locals in New York,

and in many other places throughout the country where

television and radio productions originate.

Facts —

Aftra is, and for many years prior to 1967 was, a col-

lective bargaining agent, and is a “labor organization” as

defined by the National Labor Relations Act. [29 U.S.C.

§152(5).]5 Wherever permitted by state law, Aftra has

bargained for, and obtained, union shop conditions, with

RKO General, Inc., Columbia Broadcasting System and

many other television and radio producers, networks and

broadcasters. These contracts incorporate by reference, as

in the nature of a contract of adhesion, a so-called “Code of

Fair Practice”. Section 84 of Aftra’s Code of Fair Prac-

tice for the television industry reads in relevant part as

follows: ;

84. Union Shop

Until and uniess the union security provisions of

the Labor Management Relations Act, 1947, as

amended, are repealed or amended so as to permit

a stricter union security clause the following pro-

visions shall apply:

‘It is agreed that during the term of this agree-

ment, we will employ and maintain in our employ-

ment only such persons covered by this agreement

5. The statute reads in part as follows:

“(5) The term ‘labor organization’ means any organization

of any kind, or any agency or employee representation com-

mittee or plan, in which employees participate and which

exists for the purpose, in whole or in part, or dealing with

employers concerning grievances, labor disputes, wages, rates

of pay, hours of employment, or conditions of work.”

1. e

26e

Opinion of District Court (Brieant, J.)

as are members of the American Federation of Tele-

vision and Radio Artists in good standing or as shall

make application for membership on the thirtieth

(30th) day following the beginning of employment

hereunder or the date of execution of this agreement,

whichever is the later, and thereafter maintain such

membership in good standing as a condition of

employment.’

In the event the said Act is repealed or arnended so

as to permit a stricter union security clause the

above provision shall be deemed amended accord-

ingly. The provisions of this paragraph are subject

to said Act.”

This provision has been in effect for some years and is

specifically authorized in New York and elsewhere by

§8(a) (3) of the National Labor Relations Act, 29 U.S.C.

§158(a) (3), which reads in relevant part as follows:

“$158. Unfair labor practices

(a) It shall be an unfair labor practice for an

employer—

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: PRovIDED, That nothing in this

subchapter, or in any other statute of the United

States, shall preclude an employer from making an

agreement with a labor organization ... to require

as a condition of employment membership therein

on or after the thirtieth day following the beginning

of such employment or the effective date of such

agreement, which ever is the later, . . . PROVIDED

FURTHER, That no employer shall justify any dis-

ee ed Settee r

woes

wer

| ee Wass

276

Opinion of District Court (Brieant, J.)

crimination against an employee for nonmembership

in a labor organization. . . if he has reasonable

grounds for believing that membership was denied

or terminated for reasons other than the failure of

the employee to tender the periodic dues and the

initiation fees uniformly required as a condition of

acquiring or retaining membership;

(b) It shall be an unfair labor practice for a labor

organization or its agents—

(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157 of

this title: PRovIDED, That this paragraph shall not

impair the right of a labor organization to prescribe

its own rules with respect to the acquisition or re-

tention of membership therein

Aftra also has a Code of Fair Practice for radio broad-

casting, as distinguished from television broadcasting.

This Code, applicable to plaintiff Evans by Section 57

thereof, provides for union shop conditions in terms sub-

stantially identical to that imposed in the television in-

dustry.®

For some time prior to November 16, 1966, the provi-

sious of the Aftra television codes defined the “People

Covered”, artists for whom Aftra was the collective bar-

gaining agent, in a manner which would have excluded

plaintiffs. Section 11 of the 1950 Code read in part as

follows:

11. PEOPLE COVERED:

All persons engaged as talent, e.g., actors; come-

dians; masters-of-ceremonies: quiz masters; disc

5. See, e.g. § 55 and 57 of Aftra 1969-72 National Code of Fair

Practice For Commercial Radio Broadcasiing, Exhibit 5, depositions

of plaintiff Evans, page 25.

28 ee

Opinion of District Court (Brieant, J.)

jockeys; singers; dancers; announcers, (other than

staff duties of staff announcers) ; sportscasters; spe-

cialty acts; walk-ons; extras; puppeteers; reporters

and analysts (with the exception of government

employees and persons who are engaged occasionally

on a single program basis because they are spe-

cialists whose regular employment or activity is in

the field in which they report, such as college pro-

fessors and scientists) in the fields of home eco-

nomics, fashions, farm and rural subjects, and

market reports; models; moderators; members of

panel where format of program requires such

persons to participate generally in entertainment.

Excluded from the provisions of this agreement are

members of panel who take part in discussion of

news, education, or public affairs programs, or per-

sons who act only as judges of contests. (Under-

lining Added)

The above provision was found in the first television

contract, effective December 8, 1950, entered into by Tele-

vision Authority [which later merged with American Fed-

eration of Radio Artists (“Afra”) to form “Aftra”] with

the network companies and other producers of television

programs.

Beginning with the 1956-1958 Aftra Code of Fair F’rac-

tice for Network Television Broadcasting, an effort was

made to distinguish services rendered in the field of news

by commentators and analysts from the services performed

by others who were not employed as commentators or

analysts.

The coverage provisions of the Code effective 1963-1966,

read in part as follows:

75. PEOPLE COVERED:

Excluded from the provisions of this agreement are

members of panel who take part in discussion of

29e

Opinion of District Court (Brieant, J.)

news, education, or public affairs programs, or per-

sons who act only as judges of contests.

This Code also applies to all persons rendering

services in the field of news including but not limited

to persons who criticize. review and/or comment on

the following: books, the fine arts, music, sports, the

theatre, movies, dance, radio, television, society, and

travel and including persons who perform in live,

film, or recorded news inserts in network television

programs. However, commentators and analysts in

the field of news (other than persons who criticize,

review and/or comment as set forth in the preceding

sentence) are excluded from the coverage of this

Code on any program upon which they are perform-

ing (among other services in the field of news) serv-

ices in the capacity of commentator and analyst; this

exclusion shall apply to services in the field of news

performed by a commentator or analyst on a pro-

gram series in the field of news where such services

as analyst or commentator (other than as a person

who criticizes, reviews and/or comments as set forth

in the preceding sentence) are performed on a sub-

stantial number of the programs on which the com-

mentator or analyst so performs on such series.

By the Code effective November 16, 1966 (1966-1969

Code) coverage extended to all persons other than staff

newsmen rendering services in the field of news, expressly

including commentators and analysts, ending the prior dis-

tinctions that had been made. Its Section 75 reads in part

as follows:

75. PEOPLE COVERED:

Excluded from the provisions of this agreement

are members of panel who take part in discussion

LIE CE meer e- . EY CF ™ * * 0

30c

Opinion of District Court (Brieant, J.)

of news, education, or public affairs programs, or

persons who act only as judges of contests; provided

that services of staff newsmen on such panel pro-

grams shall be subject to their respective staff

agreements.

This Code also applies to all persons other than

staff newsmen rendering services in the field of

news including but not limited to commentators and

analysts and persons who criticize, review and/or

comment on the following: books, the fine arts,

music, sports, the theatre, movies, dance, radio,

television, society, and travel; and including per-

sons who perform in live, film, or recorded news

inserts in network television programs. However,

management personnel delivering editorials are ex-

cluded from the coverage of this Code.

The same coverage pertaining to commentators and

analysts rendering services in the field of news is con-

tained in the 1969-1972 Code, and in the staff newsmens’

agreement entered into by Aftra with the network com-

panies. It remains effective.

Plaintiffs contend that the industry Codes of Fair

Practice imposed on them by Aftra as a result of con-

tracts with employers, constitute per se an unreasonable

prior restraint on their freedom of speech, guaranteed by

the First Amendment to the United States Constitution.

They assert that they are exposed to union discipline.

Provisions of the Aftra constitution imposing this disci-

pline read in relevant part as follows:

“Any member who shall be guilty of an act, omis-

sion, or conduct which in the opinion of the Board

is prejudicial to the welfare of the Association, or

of any of its Locals, or of any of its members, as

Ble

Opinion of District Court (Brieant, J.)

such, or any member who shall fail to observe any

of the requirements of the Constitution, or of any

By-Laws, rules, regulations or others lawfully is-

sued by the Association, any Local or any duly au-

thorized committee or agent of said Association or

any Local or any member who shall in any way be

indebted to the Association or any Local thereof,

may, in the discretion of the Board, be either fined,

censured, suspended or expelled from membership.

The Board may discipline a meinber for each and

every offense or violation, and no member shall be

exempt from disciplinary action because of any pre-

vious action of the Board upon some other or differ-

ent charge.” (Article XVIII, Sec. 1)

In addition, the New York Local of Aftra, [and pre-

sumably other locals] imposes on members the following

obligations as found in Article X of the Aftra New York

Constitution, which reads in relevant part as follows:

The Local may] . . . order its members to refrain

for a given time or until further order of the Local

Board under specified conditions or in any manner

whatsoever from working for, dealing with, or hav-

ing any business relations with anyone or more em-

ployers, producers, networks, stations, advertising

agencies, sponsors, independent packagers, tran-

scription companies, phonograph recording compa-

nies, agents, managers, impresarios or other persons

connected with the radio, television, phonograph

record business.”

Plaintiffs view this element of union discipline, and the

entire matter of being required to join a union in order to

express their own opinions and to present analysis and

commentary having a conservative bias, as unlawful and

constituting an unreasonable prior restraint and also as

F ae a va FE ET eT PN OP RL” e

eae

32e

Opinion of District Court (Brieant, J.)

having a chilling effect on their First Amendment rights.

We are thus tendered the issue as to whether this union

jurisdiction, achieved through Act of Congress (supra, p.

10) is unconstitutional as applied to plaintiffs’ segment of

radio and television employment.

As previously noted, the first television contract, effec-

tive December 8, 1950, made by Aftra’s predecessor with

the network companies and other producers of television

programs, contained a “People Covered” provision which

defined those members of the collective bargaining unit as

persons engaged as “talent”. Excluded from coverage as

“talent”, and therefore not defined as “artists” were those

persons who “are members of panel who take part in

discussion of news, education or public affairs programs”.

The affidavit of Kenneth Groot, Executive Secretary of

Aftra’s New York Local, which affidavit is sworn to April

26, 1972, points out that “as the news bulletins, newscasts,

news programs and news documentaries became increas-

ingly important in television, the network companies con-

tended that the commentators and analysts in the field of

news should be excluded from the scope of the contract

‘beacuse the requirement of union membership might some-

how infringe their right to speak freely’.”

Mr. Groot observes that the exclusion of news commen-

tators and analysts from the coverage of the collective bar-

gaining agreements “took on extra significance because pro-

ducers began to classify ordinary news reporters as an-

alysts to keep them out of the bargaining unit”.

Such technique is not unheard of in industrial unionism,

where employers attempt to exalt production workers into

“foreman” or “management” status, so as to exclude them

from the bargaining unit and prevent them from voting in

recognition elections.

e e e

8985 e

330

Opinion of District Court (Brieant, J.)

We think, however, that this threat to union security

could have been met by making factual determinations on

an ad hoc basis; management permitting an announcer or

reporter the opportunity to disgorge an occasional ad lib

will not make him a commentator or analyst. Reasonable

administration of the prior union contract should have

avoided this difficulty.

Effective November 15, 1966, as Mr. Groot’s affidavit

notes, the National Code of Fair Practice for network tele-

vision broadcasting was made applicable to all persons

other than staff newsmen rendering services in the field of

news. Expressly included were commentators and an-

alysts. Staff newsmen, as distinguished from free lance

newsmen, also became covered under separate agreements.

We must remember the admonition that “We are not

to shut our minds as Judges to truths that all others can

see and understand.“

It is obvious that these changes in the persons in-

cluded in the collective bargaining unit were arrived at

as a result of collective bargaining between Aftra and its

membership on the one hand, and the employers, broad-

casters and producers on the other. Such bargaining

presumes a quid pro quo. Whether the employers gave up

the prior exclusions enjoyed with respect to commentators

in order to gain some economic benefit for themselves in

7. This quotation was attributed to Chief Justice Taft by (then)

Judge Cardozo, in McGovern v. City of New York, 234 N.Y. 377,

392 (1923). who there referred to Bailey v. Drexel Furniture Co.,

259 U.S. 20 (1921). In Bailey, the Supreme Court, referring to a

tax on the employment of child labor. wrote, per Chief Justice Taft:

[Al] court must be blind not to see that the so-called tax

is imposed to stop the employment of children within the

age limits prescribed. Its prohibitory and regulatory effect

and purpose are palpable. All others can see and under-

stand this. How can we properly shut our minds to it?

34¢

Opinion of District Court (Brieant, J.)

some other aspect of their labor relations is of no great

importance. The public, and those who would be com-

mentators and analysts enjoying full First Amendment

rights, were not participants in, nor are they barred by

the results of such bargaining, in which the employers, on

plaintiffs’ theory of the case, sold out the freedom from

prior union restraint previously enjoyed by a limited

group of nes commentators and analysts.

Interestingly, at the same time, the employers bar-

gained for freedom from union discipline on the part of

those persons characterized as “management personnel”

who merely read the expressions of editorial opinion writ-

ten by the owners.?“

Both Aftra and the employers with whom these plain-

tiffs have had dealings, interpret the Code to include com-

mentators and analysts who express their own philosophical

bias [who, in eflect, editorialize in support of their own

opinions, rather than for the opinions of ownership, as the

exempted employees do], as being within the bargaining

unit. They are persons for whom full membership in

Aftra, and compliance with union discipline is a condition

precedent to speech, at least in New York and many other

states.

Additional contracts between Aftra and producers

prevent use of unionized production facilities for creating

tape to be rebroadcast on non-union stations, and further

provide that an independent (non-network, non-station)

producer must require membership on the part of the “Peo-

ple Covered” by the Aftra Code, or else his independent

production many not be broadcast on unionized stations.

8. Aſtra 1966-69 Code, see infra, p. 14. last sentence of quota-

tion. Of course. we cannot conclude that the sole reason the sta-

tion owners bargained for and received exemption for “management

personnel delivering editorials” is to protect ownership’s First

Amendment rights.

35¢

Opinion of District Court (Brieant, J.)

Plaintiffs Become Members of Aftra

As noted, written agreements binding upon CBS News,

Inc. and Aftra require, among other things, that persons

employed to do plaintiff Evans’ work, must become and re-

main members of Aftra. The contract of employment

between CBS News, Inc. and Evans, and his prior con-

tract (18), provide that Eyans is “bound by all the

terms and provisions of the applicable Aftra National

Code of Fair Practice for commercial radio broadcasting”

and “will become a member of Aftra in good standing,

subject to and in accordance with the provisions of said

applicable Aftra Code or Agreement” and “will become and

remain during the term of this agreement, a member in

good standing of any labor unions or guilds with which

CBS may at any time have agreements then in effect law-

fully requiring such membership.”

Breach of this, or other covenants of the written em-

ployment agreement are agreed grounds for reduction of

compensation, or termination ( 19).

Evans has testified at his deposition read in support of

the motion, without contradiction, that he negotiated his

employment directly with a Vice President of CBS News,

Inc. His mimeographed form contract contains changes

and deletions made in ink. In ine course of his contract

negotiations, Evans was told by CBS Vice President Rob-

inson that he would have to join Aftra. After Evans pro-

tested, Robinson advised that CBS had a contract with

Aftra by reason of which CBS was required to compel Evans

to join Aftra; that if he refused to join Aftra CBS simply

could not engage him.

In order to obtain the employment und the opportunity

to express his conservative views by radio, Evans applied

for membership in, and joined Aftra.

LEI ODT TIPE NOE SA AP siplO AN Sane 4 — AO np oe 2 — — — ower) =

360

Opinion of District Court (Brieant, J.)

The conduct of the CBS officer in this circumstance

is nothing more than would be expected in view of the

existing labor agreements. The employer had contracted

in good faith that it would require all persons in Evans’

area of endeavor to become members of the union within

30 days after employment. The contracting parties, in-

cluding Aftra, intended that what was done, would be

done by the employer, in precisely the way in which it was

done. Counsel for Evans termed this “coercion”.

I find that plaintiff Evans had a good faith objection

to joining the union, based upon his contention that it is

unconstitutional to require him to do so and in derogation

of his First Amendment and related rights. He would

not have joined but for the fact that Aftra bargained for

and received, adherence. by CBS News, Inc. to the Code

aforementioned.

Buckley did not attain membership in Aftra under

such simple factual circumstances. Briefly described,

however, Buckley’s membership, like that of Evans, was

effected against his scruples, and only in order to permit

him to continue to express to the public his commentary

and analysis from a conservative bias. Plaintiffs’ motiva-

tion in joining Aftra was not unlike that of the conversion

of Henry of Navarre.

Buckley commenced his television appearances in or

shortly after 1955. His early appearances were generally

without compensation. In about 1964, the increasing public

attention which he was receiving, and the fact that a pro-

posed program discussing matters of public interest with

Buckley as host and moderator was under consideration,

resulted in an invitation from Mr. Kenneth Groot, Ex-

ecutive Secretary of Aftra, dated August 27, 1964, to be-

come a member.

ee ee ee e e

dP vow

37e

Opinion of District Court (Brieant, J.)

On September 1, 1964, Buckley, apparently early de-

termined to sustain his First Amendment claim presently

in litigation in this action, wrote and inquired whether

he was free to join or not join, and asked what the sanc-

tions used against him would be in the event he should “opt”

not to join.

Mr. Groot, in an entirely courteous letter of September

3, 1964, responded, conveying the details of membership

application, initiation fee and dues and advised since

Aftra has a union shop in all of its collective bargaining

agreements, it is necessary that persons who appear on

radio or television in Aftra covered employment be mem-

bers . . . within the period prescribed by law.“

Mr. Groot’s letter was a fair summary of the legal

effect of the Code and labor contracts upon Buckley, who

replied by letter on September 22, 1964 “I have apparently

no alternative than to join your union, I shall proceed to

do so under protest.” He states thereafter that on May

14, 1965, while appearing on a television program, an un-

identified “organizer” for Aftra tendered an application

form and advised that he would not be permitted to go on

television again unless he became a member.

During the period immediately following this alleged

attempt to enlist plaintiff in the union as required by the

contracts and codes, he became a candidate for the office of

Mayor of ‘he City of New York, and no further efforts

were made during this period.

In late 1965 nd early 1966, apparently an RKO Gen-

eral employee, Yarnell, in connection with the production

of the program later known as “Firing Line”, took the

occasion to remind Buckley. of the provisions of the Code

of Fair Practice and the agreement between RKO General,

Inc. and Aftra which require union membership as a condi-

38e

Opinion of District Court (Brieant, J.)

tion of broadcasting. It was Yarnell’s duty to perform

RKO’s agreement with Aftra for union shop conditions.

To avoid what Buckley describes as “a long legal battle in

the courts” he submitted his application to join Aftra on

April 1, 1966.

Previously to submitting the application on April 1,

1966, National Review, Inc. had by agreement with RKO

General covenanted to abide by the Aftra Code of Fair

Practice and all collective bargaining agreements. These

provisions in effect require union shop conditions to be

maintained by an independent producer whose work is to

be broadcast over any major station or network in New

York. (See p. 11 of Buckley’s affidavit, sworn to February

16, 1972.) Similar provisions were embodied in subse-

quent contracts pursuant to which Firing Line was pro-

duced.

Section 90 of the Aftra Codes of 1966-1969 and 1969-

1972 entitled “Purchase of Package Shows“, read in rele-

vant part as follows:

90. PURCHASE OF PACKAGE SHOWS:

“Nothing in this agreement shall be construed as

preventing the Producer from buying package shows

from fair independent contractors; provided that

the Producer must, in its agreement with the inde-

pendent contractor, include a provision requiring

such contractor to sign, adopt and conform to the

‘1969-72 AFTRA National Code of Fair Practice

for Network Television Broadcasting,’ and further

provided that such independent contractor becomes

a signatory to such Code and a signed copy of the

Code is delivered by the Producer or independent

contractor to AFTRA not later than 72 hours prior

to the first broadcast of the program. AFTRA

n =

9232 reer

39c

Opinion of District Court (Brieant, J.)

agrees with the Producer that if an independent con-

tractor has signed this agreement and the Producer

has complied with this paragraph, AFTRA will not

exercise its right to strike against the independent

contractor so as to create program emergencies for

the Producer.” (Copied from 1969-72 Code)

Buckley also asserts that he was coerced into joining

Aftra, and was threatened. Defendant cavils over this

choice of words. It is there that we are told issues of fact

exist. Defendant’s memorandum submitted on the motion

(p. 15) contains the following statement:

“Aftra categorically asserts that Mr. Buckley be-

came an Aftra member only under pressure from

RKO General. Mr. Evans testified that no repre-

sentative of the union communicated with him in any

way. . . and that he was compelled to become an

Aftra member by his employer.”

Such compulsion, applied to Evans by the employer, or

in Buckley’s case, by the customer for the packaged show,

in behalf of itself and all other broadcasting outlets, parties

to the Aftra Code, occurred by reason of the Contract, or

collective bargaining agreement, between. Aftra and these

broadcasters. At the special instance and request of Aftra

the broadcasters had agreed to enforce the contract. Mr.

Groot properly observed (deposition p. 34) that “the pro-

ducer who has signed the collective bargaining agreement

with Aftra has an equal obligation with Aftra to observe

the provisions of it. We would notify such a producer of

any failure to observe those provisions which we considered

to be a violation, and he would be under an obligation to

see that the individual in such a case were a member of

Aftra or did join the union.” Later, Mr. Groot testified on

deposition with respect to a hypothetical question based

40e

Opinion of District Court (Brieant, J.)

upon the production of Firing Line that ... Yes, we would

pursue Mr. Buckley in such a case, and we would also advise

RKO of the fact. We would do both. This would be what

I would do if I were handling such a matter directly.”

Thus it appears that neither Buckley nor Evans could

insulate themselves by not accepting employment from the

employers having contracts with Aftra. Under the pro-

visions of the Aftra Code, no matter by whom employed or

paid, or even if self-employed, any “artist”, as defined by

the “People Covered” clauses, who appears regularly on

any major network radio or television station for pay must

become a member of Aftra. Groot testified that he had uni-

formly had compliance. Such compliance, as noted, extends

to use of a station’s producing facilities to create tapes not

intended to be broadcast on that station, but for broadcast

in another station or even in a foreign country, and this

whether or not the broadcast outlet itself has such a labor

contract. Mr. Groot has asserted that Buckley’s work on

Firing Line was that of a “moderator” and that he is an

“actor” when he appears on other shows.

Further, when National Educational Television and

Radio Center (“NET”) broadcasts programs produced by

or with the support of the “Corporation for Public Broad-

casting” (a federally funded entity), Aftra requires, by

reason of contractual agreements with NET that such pro-

grams likewise comply in all respects with the Code (Groot

deposition, p. 60).

As to productions for broadcasts elsewhere, other than

in New York, Groot testified that “Whether or not it was

broadcast at that station [a station owned by a producer

with whom an Aftra agreement had been executed] or

broadcast at stations where we didn’t have a contract, we

would still obviously control or feel we had a right to en-

41e

Opinion of District Court (Brieant, J.)

force our contract with that station where we had a con-

tract, even though it was not made for broadcast there,

simply because the provisions of those contracts, as in the

case of RKO, do include provisions, by reference, to the

syndication of programs.” (Groot deposition, p. 70.)

Plaintiffs correctly point out that only evidence, as

distinguished from pleadings or statements, serves to raise

issues of fact on a motion for summary judgment. Issues

of fact may not be brought into existence ipse dixit.

The affidavit of William A. Rusher, Vice President

of National Review, Inc., sworn to November 5, 1972,

clearly shows, without contradiction, that in November,

1970, after a lengthy period of dissatisfaction with Aftra’s

membership requirement, Buckley contemplated with-

drawing from the union or bring legal action to determine

his rights to do so. Rusher then requested Mr. Warren

Steibel, associated with National Review, Inc. as the pro-

ducer of Firing Line, to arrange a conference with the

appropriate official of Aftra.

On November 25, 1970, Rusher and Steibel had a 10

to 15 minute meeting with Irving Lewis of Aftra at the

union’s office in New York City. If Buckley resigned,

Lewis there asserted, Aftra would instruct WOR-TV to

cease broadcasting Firing Line since Aftra had a contract

with WOR-TV wherein the station was forbidden to broad-

cast work of non-members. Lewis explained that Aftra

had similar contracts with every other television station in

New York, and that Firing Line could not be broadcast in

New York at all should Buckley resign from the union.

Lewis was uncertain as to the consequences of possi-

ble production in England. However, as noted by Rusher,

42e

Opinion of District Court (Brieant, J ) *

Lewis “said that he was quite confident that it could not

be produced anywhere in the United States if Mr. Buckley

were not a member of Aftra, and that Aftra would do its

best to prevent the broadcast here of any programs pro-

duced in England.” Lewis, in response to a question re-

garding Los Angeles as well, replied that Aftra had con-

tracts with all Los Angeles stations corresponding to its

contracts with New York stations.

Lewis noted that Buckley could not limit his Aftra

obligations to paying dues and initiation fees. Buckley

would also be required to respect an order not to cross a

picket line around WOR-TV, and to participate in a nation-

wide strike of Aftra, if need be. If Buckley were to with-

draw from Aftra, Lewis replied that the union would in-

struct its members not to participate in the production of

Buckley’s program.

Incontrovertable evidence, including admissions of de-

fendant; shows that Buckley was required by the Aftra

Code and contracts with broadcasters ancillary thereto, to

become and remain a member of Aftra, against his will.

It was made perfectly clear to him that he would be unable

to continue to broadcast his opinions and philosophy should

he fail to so do. He made a determined effort to elude

Aftra, or at least to force Aftra to establish its coercive

position as to him, in maner clear enough to permit tender-

ing the issue to this Court and to the public.

Whether the actual transactions between Aftra repre-

sentatives and broadcasters on the one hand and Buckley

on the other leading to his membership involve peripheral

issues of controverted fact is immaterial. Buckley and

Evans have clearly shown on the record before me that

they were forced to apply for and receive membership in

Aftra in order to speak on radio and television with re-

—

43c

Opinion of District Court (Brieant, J.)

spect to their opinions cnd philosophies. They need not

show “threats”, or “coercion” in a physical sense.

Jurisdiction

Plaintiffs assert their claim inter alia, under the rele-

vant portions of the First Amendment and the Ninth

Amendment to the United States Constitution.

The First Amendment states: “Congress shall

make no law. . . abridging the freedom of speech,

or of the press.

The Ninth Amendment states: “The enumera-

tion in the Constitution of certain rights shall not

be construed to deny or disparage others retained

by the people.”

Plaintiffs found jurisdiction on several grounds They

urge that these are “civil actions wherein the matter in

controversy exceeds the sum or value of $10,000.00 . . and

arise[s] under the Constitution, laws or treaties of the

United States.” 28 U.S.C. § 1331. The cause of action,

which states a claim under federal law, literally arises

under the Constitution, and a substantial right of the

plaintiffs may be defeated by one construction of the Con-

stitution or a federal statute, as opposed to another con-

struction. Gully v. First National Bank, 299 U.S. 109

(1936) ; Wheeldin v. Wheeler, 373 U.S. 647 (1962); Old-

land v. Gray, 179 F.2d 408 (10th Cir. 1950), cert den. 339

U.S. 948. The circumstances do appear clearly from well

pleaded allegations in plaintiffs’ complaints.

We have no doubt that the matter in controversy ex-

ceeds the sum or value of $10,000.00 for jurisdictional

purposes. That which is at stake here, the right to con-

tinue to offer for sale one’s services as a commentator and

analyst, is, based on the past financial performance of each

CLE T ESE NIT NTE SOO BFE LER POE ATEN ae ge or RE

en a |

44c

Opinion of District Court (Brieant, J.)

plaintiff, of the value of $10,000.00. Plaintiffs have every

expectation of continuing in their professional efforts so

long as there is a public demand for their services. This

could be of indefinite duration. The mere fact that in a

single calendar year one or both of them may have failed

to earn $10,000.00 from radio and television activity does

not preclude our finding that the right at stake is of such

value.

Jurisdiction is also based on § 1337 of U.S.C., Title

28, as a case arising under an Act of Congress relating to

commerce (National Labor Relations Act). While the

plaintiffs do not assert any right given them under an act

of Congress, they seek to test the extent of the rights given

defendant under such an act, and asserted against them, in

claimed derogation of their constitutional rights. Subject

matter jurisdiction has been taken in cases involving dis-

putes as to the extent of union power granted under the

Nationa! Labor Relations Act, Ford Motor Co. v. Huffman,

345 U.S. 330 (1952); Linscott v. Millers Falls Co., 440

F.2d 14 (1st Cir. 1971) ; Seay v. McDonnell-Douglas Corp.,

427 F.2d 996 (9th Cir. 1970).

Persons adversely affected by the results of collective

bargaining agreements, which impinge upon their rights

secured by the Constitution, have been permitted to seek

relief in the District Courts Steele v.L & N Ry. Co., 323

U.S. 192 (1942). They need not exhaust administrative or

intra- union remedies. See Seay v. McDonnell-Douglas

Corp., supra; Steele v. L & N Ry. Co., supra and Railway

Employees Department v. Hanson, 351 U.S. 225 (1956).

As so well stated by Mr. Chief Justice Vinson in Com-

munications Association v. Douds, 339 U.S. 382, 401 (1950)

„.. when authority derives in part from Government’s

thumb on the scales, the exercise of that power by private

{PREM HO Oe Low

45e

Opinion of District Court (Brieant, J.) ,

persons becomes closely akin, in some respects, to its exer-

cise by Government itself”, and therefore justiciable.

Defendant alleges in its answer (29) to the amended

and supplemental complaint in the Buckley case, that it is

“empowered to enter into [such] agreements with em-

ployers requi: ng as a condition of employment membership

therein . . . pursuant to the provisions of 58 (a) (3) of the

N.L.R.A., as amended, 29 U.S.C. §158.”

Presumably, if CBS News had failed to insist that

Evans join the union, the union could have called a strike,

notwithstanding the outstanding labor contract, or could

have instituted suit, or filed an unfair labor practice charge

[with the National Labor Relations Board] for failure to

perform the bargaining agreement. If union leadership

failed to enforce performance of the agreement by manage-

ment, an aggrieved member of the rank and file may have

standing to insist on such performance. 29 U.S.C. §151,

et seg. Furthermore, NET is directly subsidized with fed-

eral funds.

Subject matter jurisdiction will permit declaring the

rights or legal relations of the parties seeking such declara-

tion, pursuant to 28 U.S.C. §2201, if, on the facts, an actual

controversy is shown to exist. There is here such an actual

controversy. Plaintiffs need not subject themselves to the

loss of their valuable contract rights by withdrawing from

Aftra, and as a result have their expression of opinion on

radio and television stifled. Aftra has made clear that this

will result if they do so, and plaintiffs have made clear that

they joined only out of necessity, which they style as

coercion.

The Court finds jurisdiction over the subject matter and

the parties for the purpose of determining the controversy

and declaring the respective rights of the parties.

6! LO II OLN EOE e rite ge

46c

Opinion of District Court (Brieant, J.)

Defendant casts its attack on the merits of plaintiffs’

claim that their First Amendment rights have been

“chilled”, in terms of an objection to jurisdiction because, it

is said, no actual controversy exists. Of course, plaintiffs

cannot litigate a philosophical question without showing a

stake in the issue. They may not seek “an advisory opin-

ion”. The presence of an actual impingement, a threat to,

or a chilling effect on their First Amendment rights of free

expression must exist as a jurisdictional element of the case.

See Abbott Laboratoreies v. Gardner, 387 U.S. 136 (1967) ;

International Longshormens & Warehousemens Union Lo-

cal No. 37 v. Boyd, 347 U.S. 222 (1954); Public Service

Commission of Utah v. Wycoff, 344 U.S. 237 (1952);

Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426

(1948) ; and United Public Workers of America (C. I. O.) v.

Mitchell, 330 U.S. 75 (1947).

Such chilling effect does exist here. See infra, p. 49.

Plaintiffs’ Standing to Raise the Constitutional Issue

Radio and television stations are, in some but not all

respects, a technological extension of the “press”, as it was

known to the authors of the First Amendment. This is

recognized by most Courts. The First Amendment extends,

of course, to broadcasting, as well as to other media of

expression. See, for example, National Broadcasting Co.

v. United States, 47 F.Supp. 940 (1942), aff'd. 319 U.S.

190 (1943).

Were the instant issues raised with respect to the

press, however, distinctions would appear. The news-

papers belong to their owners, and print what the owners

will. In editorial comment, the New York Times and the

Washington Post may be unreservedly liberal, while the

Indianapolis News or the Manchester Union Leader may

be unremittingly conservative. We are told that union

Opinion of District Court (Brieant, J.)

leadership as not, in the area of the American press, as-

serted the same control over columnists, editorial writers,

commentators and analysts of opinion, such as Buckley

‘and Evans, as is present in this case. Recently, the

American Newspaper Guild voted to endorse a national

political candidate. The New York Times editorial (Satur-

day, July 22, 1972) in part as follows:

“ . the decision of the American Newspaper Guild’s

Executive Board to endorse the candidacy of .. . is

wrong in principle and mistaken in tactics. The

Guild clearly includes members of diverse political

viewpoints. The union leadership cannot and should

not try to speak for them as if they were a political

bloc. Moreover, impartiality and fairness in re-

porting and editing the news are the central ideals

of the news profession, never perfectly attained, but

strived for every day. While it is true that the large

part of the Guild’s membership has nothing to do

with preparing, reporting or editing, the union

contains enough strictly professional journalists to

warrant its avoidance of taking positions on public

issues or political personalities. To do otherwise

is to cast a shadow of doubt upon the profession’s

commitment to its own ideals.”

Officials of many unions affiliaced with AFL-CIO, as is

defendant, cause their organizations to take political po-

sitions with respect to the endorsement of candidates and

with respect to national and state issues. Section 610 of

Title 18, U.S.C., as amended by the Federal Election

Campaign Act of 1971, expressly authorizes labor organi-

zations to solicit and expend money in connection with a

federal election, so long as not secured by physical force,

job discrimination, financial reprisals or the threat thereof.

In addition, the contributions or expenditures must be

48c

Opinion of District Court (Brieant, J.)

from voluntarily financed segregated union funds. See

Pipefitters Local Union No. 562, et al., v. United States,

407 U.S. 385 (1972). :

A political philosopher holding himself out to the

public as presenting views with sincerity, must of necessity,

have the importance attached to his views nullified if it be

known that he is a member of an organization which is

raising money for contrary positions, and taking adverse

stands.

Radio and television differ from the press in that the

press is open, at least in theory, to all. Any citizen (if

he has Five Million Dollars) is legally free to start a

competing newspaper in any of our major cities to set

forth his own opinion. A latter day Paine with a mime-

ograph machine is deemed to have access to the “market-

place of ideas” for Constitutional purposes, equal fo those

who own and control the leading journals of news and

opinion. Accordingly, there is no legal requirement for

the press to present a “fair” balance of opinion and ana-

lysis. Subject only to the laws of libel, there is not even

a requirement of truthfulness and accuracy.

The situation is different with respect to radio and

television. Frequencies available are limited. Accord-

ingly, access is limited. Licenses issued pursuant to the

authority of Congress are in the nature of franchises, al-

locating the airwaves among those desiring to be heard

and seen. Although acquired practically without cost)

many licenses have been “sold” for substantial sums.

Broadcasting franchises are held in the public interest.

The Federal Communications Commission (“FCC”)

may not grant or renew a station license, except upon a

finding that “public convenience, interest, or necessity

will be served thereby” (47 U.S.C. § 307(a), et seg.). One

490

Opinion of District Court (Brieant, J.)

of the essential elements for consideration in determining

public necessity is the “quality and fairness of the licensee’s

programming.” Hale v. F.C.C., 425 F.2d 556 (D.C.Cir.

1970).

As stated in Red Lion Broadcasting Co. v. F. C. C., 395

U.S. 367, 369 (1969):

“The Federal Communications Commission has

for many years imposed on radio and television

broadcasters the requirement that discussion of

public issues be presented on broadcast stations, and

that each side of those issues must be given fair

coverage. This is known as the fairness doctrine,

which originated very early in the history of broad-

casting and has maintained its present outlines

for some time.”

Ned Lion, supra, holds (p. 375) that the Fairness

Doctrine “[{E]nhance[s] rather than abridge[s] the free-

doms of speech and press protected by the First Amend-

ment”, and is constitutional. Also, (p. 377-8):

“There is a twofold duty laid down by the FCC’s

decisions and described by the 1949 Report on

Editorializing by Broadcast Licensees, 13 F.C.C.

1246 (1949). The broadcaster must give adequate

coverage to public issues, United Broadcasting Co.,

10 F.C.C. 515 (1945), and coverage must be fair in

that it accurately reflects the opposing views.

New Broadcasting Co., 6 P & F Radio Reg. 258

(1950). This must be done at the broadcaster’s

own expense if sponsorship is unavaliable. Cullman

Broadcasting Co., 25 P & F Radio Reg. 895 (1963).

Moreover, the duty must be met by programming

obtained at the licensee’s own initiative if avail-

able from no other source. John J. Dempsey, 6 P &

50e

Opinion of District Court (Brieant, J.)

F Radio Reg. 615 (1950) ; see Metropolitan Broad-

casting Corp., 19 P & F Radio Reg. 602 (1960);

The Evening News Assn., 6 P & F Radio Reg. 283

(1950). The Federal Radio Commission had im-

posed these two basic duties on broadcasters since

the outset, Great Lakes Broadcasting Co., 3 F.R.C.

Ann. Rep. 32 (1929), rev’d on other grounds, 59

App.D.C. 197, 37 F.2d 993, cert. dismissed, 281

U.S. 706 (1930); .. .”

As stated in Radio Television News Directors Ass’n V.

United States, 400 F.2d 1002, 1005 (7th Cir. 1969), rev’d.

on other grounds, 395 U.S. 367:

“The Fairness Doctrine was initially articulated in

the Report of the Commission in the Matter of Edi-

torialization by Broadcast Licensees, 13 F.C.C. 1246

(1949). In that report, the Commission stated the

basic obligation of licensees to present broadcasts

concerning public issues, in a manner which would

insure that the listening public would be exposed to

a broad spectrum of views on a given issue. The

Commission indicated that ‘specific Congressional

approval’ of the Fairness Doctrine was contained in

the 1959 Amendments to section 315 of the Commu-

nications Act.”

Section 315 of 47 U.S.C. referred to in Radio Television

News Directors Ass’n, supra, reads as follows:

“(a) If any licensee shall permit any person who is

a legally qualified candidate for any public office to

use a broadcasting station, he shall afford equal

opportunities to all other such candidates for that

office in the use of such broadcasting station: Pro-

vided, That such licensee shall have no power of

censorship over the material broadcast under the

5le

Opinion of District Court (Brieant, J.)

provisions of this section. No obligation is imposed

upon any licensee to allow the use of its station by

any such candidate. Appearance by a legally quali-

fied candidate on any—

(1) bona fide news cast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance

of the candidate is incidental to the presentation

of the ‘abject or subjects covered by the news

documentary), or

(4) on-the-spot coverage of bona fide news events

(including but not limited to political conven-

tions and activities incidental thereto),

shall not be deemed to be use of a broadcasting sta-

tion within the meaning of this subsection. Nothirg

in the foregoing sentence shali be construed as re-

lieving broadcasters, in connection with the presen-

tation of newscasts, news interviews, news docu-

mentaries, and on-the-spot coverage of news events,

from the obligation imposed upon them under this

chapter to operate in the public interest and to afford

reasonable opportunity for the discussion of conflict-

ing views on issues of public importance.”

Power to promulgate “such rules and regulations and

conditions . . . as may be necessary to carry out the pro-

visions of this chapter” is conferred on the F.C.C. by 47

U.S.C. 56303 and 303 (r).

The statutory standard, public convenience, interest

and necessity, is “a supple instrument for the exercise of

discretion by the expert body which Congress has charged

to carry out its legislation policy”, and “to maintain

— EF P ei ak eed FE

52c

Opinion of District Court (Brieant, J.) |

a grip on the dynamic aspects of radio transmission.” “Con-

gress moved under the spur of a widespread fear that in the

absence of governmental control the publ’: interest might

be subordinated to monopolistic domination in the broad-

casting field.” (Frankfurter, J., in F. C. C. v. Pottsville

Broadcasting Co., 309 U.S. 184, 187-8 (1940).] See also

Red Lion, supra; National Broadcasting Co., Inc. v. United

States, 319 U.S. 190 (1943) ; United States v. Storer Broad-

casting Co., 351 U.S. 192 (1956) ; Harbenito Broadcasting

Co. v. F. C. C., 218 F.2d 28 (D.C. 1954) ; McIntire v. Wm.

Penn Broadcasting Co. of Pa., 151 F.2d 597 (1945), cert.

den. 327 U.S. 779 (1946) ; Greater Boston Television Corp.

v. F.C.C., 444 F.2d 841 (1970); F.R.C. v. Nelson Bros.

Bond & Mortgage Co., 289 U.S. 266 (1933).

The aforementioned Congressional policies exist pri-

marily for the benefit of the public, or listeners and view-

ers, but also benefit members of that class of persons

available to be hired by broadcasters. There are a limited

number of persons in the country situated as are plaintiffs,

qualified by education and dogma to be hired to discharge

this public duty of fair and balanced presentation of com-

peting viewpoints. Plaintiffs have been so hired. While

broadcasters would have standing to claim freedom from

any union interference with the discharge of the fairness

duty imposed upon them by law, they, in 1967, after a

strike, bargained away this right with Aftra, presumably

for economic value received, or labor peace equivalent to

economic benefit.

We think that Evans and Buckley are so specially situ-

ated as to have standing also to assert for themselves, and

for the general public, the rights assured by Congress to

hear broadcasts of commentary, analysis and political

opinion from diverse philosophic viewpoints.

530

Opinion of District Court {Brieant, J.)

If any system develops pursuant to Congressional au-

thority which chills the First Amendment rights of com-

mentators, the entire public swfers, but those who seek

employment as commentators and who are qualified there-

for and will not be hired, or will be discharged if they do

not submit, have a special personal and economic interest,

and state a grievance which we hold is cognizable in this

That which for convenience we call Gilbert’s Rule ap-

plies here:

I often think it’s comical

How Nature always does contrive

That ev’ry boy and ev’ry gal

That’s born into the world alive 0

Is either a little liberal

Or else a little conservative.

A liberal cannot be hired to express news commentary

or analysis from a conservative viewpoint, no more than a

fundamentalist preacher can be hired to conduct voodoo

rites, because such beliefs are highly personal, intrinsic and

developed in the entire course of a man’s education and his

life. Plaintiffs, and many liberal and conservative commen-

tators are sincerely devoted to the creed they preach.

while defendant, with pardonable glee, has cited a column

written by plaintiff Buckley, (New Vork Post, April 25,

1972) taking in another context an unduly restricted view

of First Amendment rights, many conservatives are more

liberal in respect to rights secured by the First and Ninth

Amendements, than are the liberals, particularly if the

exercise of such rights does rot involve mass demonstra-

tions or civil commotion. See e.g. the determined and un-

9. Sir William S. Gilbert, Jolanthe, (1882) Act II- Put. Willis.

54c

Opinion of District Court (Brieant, J.)

successful effort of another conservative commentator to

vindicate his First and Ninth Amendment rights against

the demands of the Census Bureau, United States v. Rick-

enbacker, 309 F.2d 462 (2d Cir.), cert. den, 371 U.S. 962

(1963).

Once hired as a commentator and presented to the public

as one who speaks his own sincere opinions and analysis

from his own viewpoint or bias, we hold a commentator has

First Amendment rights. The employers have recognized

this, as appears from the substantial autonomy granted

Evans by his contract with CBS News.

To discharge the network’s statutory duties, supra,

CBS News has developed the program known as “Spec-

trum” upon which Evans appears. We are told that by this

format two liberals, two conservatives and two “moderates”

speak on topics of their choice» presented in sequential spots

with a disclaimer by the broadcaster which attributes the

opinion to the speaker, not (necessarily) the station.

While it may not be held that union membership in all

circumstances chills First Amendment rights and freedom

of expression, we find ample evidence in this present record,

of uncontested facts which show an actual chilling of plain-

tiffs’ freedom of expression. The commentator, or analyst,

hired to express his own opinion has been grouped, in the

labor contract, with persons described as “artists” or

“talent” who are primarily entertainers, whose expression

is guided, at least in part, by a script or scenario. While

the union has no hiring hall or seniority list and its mem-

bership is open to all who can gain employment on television

or radio, joining defendant does require acceptance of a

serious and substantial union discipline. The degree and

extent of such union discipline is clearly expressed by those

provis ons which have been discussed supra, at pages 15 and

16.

Opinion of District Court (Brieant, J.)

Defendant’s officials have admitted on deposition that

they would require a member such as Buckley or Evans to

refuse to broadcast his commentary and opinion in the

event of a job action, or in relationship to any producer or

broadcaster who has committed an “unfair practice” inso-

far as concerns the union and in the opinion of the union

leadership.

The chilling effect of this is very real; suppose a strike

is called, at a time when matters of great public interest

are occurring in the nation or in the world, as to which

plaintiffs, missionaries of their conservative doctrine, de-

sire to express their opinion and analysis, but they are

required to refrain from crossing the picket line of another

union or are otherwise forbidden from speaking, on pain of

forfeiture?

By Congressional action, these plaintiffs have been re-

quired to agree in advance that they would so conduct

themselves in a time of crisis. There may be some in this

world of uncommitted people, Benthamites, pragmatists

and cynics who will sign the membership obligations, pay

the dues and hope that they will never be required at some

future time to face the issue squarely. To the extent that

such persons act with a secret evasion of mind, to sign,

pay, and do as they please in the event of a strike, such is

not to be required of a philosopher, liberal or conservative.

The Court believes that these plaintiffs, and others

of liberal persuasion, might under circumstances be re-

quired by their principles to violate union discipline and

broadcast their commentary and analysis in times of na-

tional crisis, even if to exercise their constitutional rights

of such free expression of opinion, it were necessary to

use the facilities of a proscribed employer, or to cross a

picket line or to violate their obligations as union mem-

560

Opinion of District Court (Brieant, J.)

bers. It is inconsistent with First Amendment rights for

Congress to force somebody to agree in advance to a limi-

tation on such conduct, and this is what has occurred here.

Nor is this issue speculative, or, as described by defendant,

“sham, fanciful, frivolous, gauzy, theoretical and specious.”

The issue contemplated has actually arisen in the re-

cent past. The only national strike by Aftra against the

networks occurred in March, 1967 because of a breakdown

in collective bargaining negotiations for the 1966-69 Codes

and contracts, pursuant to which for the first time com-

mentators and analysts were expressly included within

the bargaining unit.

During that strike, picket lines were established, and

union members were directed not to report for work.

The strike itself and the surrounding negotiations, includ-

ing the fact that the bargaining was concerning itself with

whether or not commentators and analysts were appropri-

ate members of the bargaining unit, was in itself a proper

subject for exercise of First Amendment rights. Plain-

tiffs were not then members of Aftra.

One Chester Huntley, then engaged as a liberal com-

mentator by National Broadcasting Company, expressed his

opinions in news broadcasts which he continued to make

during the strike. He suggested that it was against the

public interests for persons such as himself to be involved

in organized labor and questioned the validity of the strike,

objected to the arbitrary manner in which Aftra had gained

jurisdiction over his work, and said that union wage de-

mands by local news personnel, made to the radio and tele-

vision stations, were unreasonable and would price local

news out of the market.

After the strike was over, Aftra sponsored a panel dis-

cussion held at the Academy of Television Arts and Sciences

reer

A „ „„ „„ mel —— ee, * 24

Opinion of District Court (Brieant, J.)

in New York on October 18, 1967. As appears from the

December, 1967 issue of “Stand By!” at p. 12, marked as

Pitf.’s Exhibit 24, in the deposition of Mr. Groot, Huntley

again restated his opinion with respect to union contracts

for commentators. Mr. Mel Brandt, then National Presi-

dent of Aftra and President of its New York Local, stated

his position (p. 16) as follows:

“It was a mistake not to have disciplined Mr. Hunt-

ley when he failed to honor Aftra’s picket line last

April. It may have been the biggest mistake that

Aftra ever made in its history. It should never have

happened. We were faced with a situation where

Aftra had had its first national major strike. It was

a new experience for Aftra. We had not served spe-

cial notice on either the membership or the com-

panies that there would be no waiver of the union’s

disciplinary rights. We hadn’t even considered it.

Let’s go back to that time: We have a settlement

after thirteen days of strike, with defections threat-

ened—and we have a good settlement. It is a deal.

We are faced with an alternative. We have asked

people to honor our picket line. We have promised

them protection. So the first thing we asked for was

protection for those people who honored our picket

lines. The companies turned around and said:

‘Fine. We'll do that, but, in turn, the quid pro quo

is that Mr. Huntley, and Mr. McGee and Mr. Scherer

and Mr. Beatty must not, be disciplined.’ They mean

it. So do we keep 18, 000 members out two more

months, three more months? It’s an important

issue. Do we fail to honor our commitment to pro-

tect those who honored our picket lines? We made

a soul searching decision. Perhaps it was the wrong

decision. In retrospect, I think it was wrong. We

FINS SEA ACTING Nt ere

192 R PPP —

7 3

Opinion of District Court (Brieamt, J.)

should have stayed out another two months if need

) be and we should have disciplined those members

who did not honor our picket lines.“

The same Exhibit indicates (p. 14) thatt the union had

levied fines of $48,000.00 against “five of itts newest mem-

bers, with 90 more so I hear to come” (Hurntley, as quoted

in “Stand By!“, speaking at the forum poreviously men-

tioned).

The same issue also shows (pp. 9, 10) that 19 named

persons had been fined a total of 8129, 775.000 for failing to

comply with an Aftra National Board ordéer to support a

sister union known as “Nabet”, and not to cross Nabet

picket lines. However, there is no indieatiion that any of

the persons so fined were commentators or zanalysts.

Chester Huntley’s experience with Afftra is of suffi-

ciently recent date and writ large for all tto see. He was

saved from discipline only by pressure frorm the employers.

The union President views waiver of disciipline as a mis-

take. Relatively certain knowledge that. plaintiffs will

meet the imposition of union discipline which Huntley

missed narrowly, if they violate their wriitten agreement

to abide by union discipline is of itself a cthill equal to the

chilling effects found by the Supreme Court in cases such as

Near v. Minnesota, 283 U.S. 697 (1931)); Thornhill v.

Alabama, 310 U.S. 88 (1940); Murdock w. Pennsylvania,

319 U.S. 105 (1943): Thomas v. Collins3, 323 U.S. 516

(1945); Bantam Books, Inc. v. Sullivam, 372 U.S. 58

(1963); Lamont v. Postmaster General,, 381 U.S. 301

(1965) ; Organization For a Better Austin v. Keefe, 402

U.S. 415 (1971); and New York Times Co. w. United States,

403 U.S. 713 (1971).

Evans testified as to the chilling effect upon him. Be-

sides the chilling effect to be drawn from aa literal reading

„een

5ge

Opinion of District Court (Brieant, J.)

of the disciplinary provisions of Aftra’s constitution, to

which he had been required to sign his name signifying

assent in order to gain employment, Evans testified on oral

deposition that “. . . if Aftra goes on strike, I might cross

the picket line. I think there is simply a generic implica-

tion that I conduct my broadcasting activity so as to be at

the sufferance of Aftra.” (p. 22). He testified further

that “I have definitely felt inhibited by the requirement of

Aftra membership. . It was a question of membership to

begin with, whether I should make an issue of this and

resist joining Aftra at the time that it was required that I

join, and I decided that I shouldn’t because it might well

abort my broadcasting career. The second obvious case is

that I have felt inhibited by virtue of my Aftra membership

from delving into the question of compulsory membership

in Aftra, which had been a topic of controversy, and I have

not done a Spectrum broadcast on that subject. I didn’t

want to jeopardize my membership and therefore jeopar-

dize my broadcasting career.”

Again: “I would say ‘chilling effect’ would be an appro-

priate description of my feeling with regard particularly

to this issue. I am aware with (sic) Mr. Buckley’s suit.

I sympathize with the suit. At the time it came up I knew

him, yet I didn’t broadcast about it because I felt its chilling

effect.”

The circumstances surrounding Evans’ situation are

sufficient to warrant a conclusion that Evans was in fact

chilled and inhibited.

In the case of Buckley, the actual restraint on his free-

dom of speech upon which he relies in this litigation is

that he was required to join the union and to promise to

abide by the constitution and regulations which he rea-

sonably interprets as “that I am not allowed to say certain

60e

Opinion of District Court (Brieant, J.)

things that I would be disposed to say because it might

prejudice the welfare of the union.” (Minutes, p. 63).

He further testified “I have felt a chilling effect on my

right to express myself in the light of the fact that the

union exercises over me certain disciplinary powers which

could result in fining me or taking me off the air, if I

acted in such a way as to prejudice that union. That is

my understanding of my obligations as a member of

Aftra.”

The fact that Buckley asserts that he did not “cave in”

under the chilling effect, and that he is “defying” Aftra

places him in no different position than that of Evans.

On the entire record before me, and in view of the

prior experiences of Chester Huntley, I find that the chilling

effect and the impairment of the freedom of expression of

thought by Buckley and Evans as commentators and ana-

lysts of public affairs is real and substantial, rather than

merely speculative, and is sufficient to present a justiciable

controversy. In order to sustain what they assert to be

their rights, it would not appear necessary for them to

stop paying their dues to Aftra and be fired from their

jobs. Instead, they may continue in good standing while

seeking declaratory and equitable relief.

First Amendment Rights

Prior restraints on freedom on speech by federal, state

or local government, or by those acting pursuant to Con-

gressional authority, as is defendant, cannot be sustained

in the absence of a competing and compelling necessity

which, if not satisfied, will “surely result in direct, im-

mediate and irreparable damage to our Nation or its

people”. New York Times Co. v. United States, 403 U.S.

713. 730 (1971). As further cases come before the Su-

preme Court, the trend progresses toward the simplistic

61c

Opinion of District Court (Brieant, J.)

suggestion made by the late Justice Hugo L. Black during

a famous interview, reported in The New York Time

June 11, 1962. After noting the words of the Firs

Amendment, Justice Black said:

“I understand that it is rather old-fashioned ani

shows a slight naivete to say that ‘no law’ mean;

no law, but what it says is, ‘Congress shall make n-.

law.’ * * * [W)hen I get down to the really basi:

reason why I believe that ‘no law’ means no law

. . - took an obligation to support and defend th.

Constitution as I understand it. And being a rather

backward country fellow, I understand it to mear

what the words say. * * * It says ‘no law,’ and that

is what I believe it means.”

See also, Mr. Justice Black in New York Times Co. v.

United States, supra; Beauharnais v. Illinois, 343 U.S.

250 (1952); Yates v. United States, 354 U.S. 298 (1957)

and New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Prior restraints are presumed invalid, and the presump-

tion is said to be heavy. Organization For A Better

Austin v. Keefe, supra.

A prior restraint purely ministerial in nature was

rejected in Lamont v. Postmaster General, supra, because

considered “a limitation on the unfettered exercise of . . .

First Amendment rigits“. Cases such as Near v. Minne-

sota, supra, which permit Congress to place restrictions

on First Amendment expression must be founded upon a

compelling interest which cannot be achieved in any other

reasonable manner in lieu of the proposed restrictions.

Cases limiting the police powers of states to chill First

Amendment rights are equally applicable to Congressional

action. National Association for the Advancement of

Colored People v. Button, 371 U.S. 415 (1963). Some of

620

Opinion of District Court (Brieant, J.)

the most recent expressioins of the Supreme Court are

found in Baird v. State Bar of Arizona, 401 U.S. 1 (1971);

Laird v. Tatum, 408 U.S. 1 (1972) ; Healy v. James, 408

U.S. 169 (1972); and Branzburg v. Hayes, 408 U.S. 665

(1972).

The principles stated apply, among other things, to dis-

cussion of public affairs, the highest level of First Amend-

ment rights. Restrictions placed on mere commercial

activity, e.g. rules against commercial signboards or anti-

littering cases, Valentine v. Chrestensen, 316 U.S. 52

(1942), are contrasted with Thornhill v. Alabama, supra,

in which the Court analyzed freedom of speech and of the

press as embracing the “liberty to discuss publicly and

truthfully all matters of public concern without previous

restraint or fear of subsequent punishment.” This plain-

tiffs do not presently enjoy. See also New York Times Co.

v. Sullivan, supra (“. . . profound national commitment to

the principle that debate on public issues should be unin-

hibited, robust and wide open”); Garrison v. Louisiana, -

379 U.S. 64 (1964) at p. 74 (“specisal concern with public

affairs is more than self expression; it is the essence of

self-government”); see also Rosenblum v. Metro-Media,

Inc., 403 U.S. 29 (1971); Nils v. Alabama, 384 U.S. 214,

218 (1966); Bond v. Floyd, 385 U.S. 116 (1966); U.S.A.

v. The National Committee For Impeachment, .... F.2d

.... (2d Cir. 1972), docket Nos. 72-1982, 72-1995, de-

cided October 30, 1972.

Defendant cites cases such as Linscott v. Millers Falls

Co., 440 F.2d 14 (1st Cir.), cert. den. 404 U.S. 872 (1971,

Chief Justice Burger and Justice Douglas dissenting),

which refused to sustain as a free exercise of religion under

the First Amendment the claim of persons who were dis-

charged because their religious principles forbade them to

bac

Opinion of District Court (Bricant, J.)

pay union dues. What determination the Supreme Court

will adopt on this issue in construing §8(a)(3) as to

those who claim religious immunity, when such a case

reaches that Court, remains to be seen. In light of the

subsequent holding in Wisconsin v. Yoder, 406 U.S. 205

(1972), it may sustain a free exercise claim. In Wisconsin,

the Court stated at p. 215:

“The essence of all that has been said and written on

the subject is that only those interests of the high-

est order and those not otherwise served can over-

balance legitimate claims to the free exercise of

religion. We can accept it as settled, therefore,

that, however strong the State’s interest in uni-

versal compulsory education, it is by no means ab-

solute to the exclusion or subordination of all other

interests. E.g., Sherbert v. Verner, 374 U.S. 398

(1963) ; McGowan v. Maryland, 366 U.S. 420, 459

(1961) (separate opinion of Frankfurter, J.);

Prince v. Massachusetts, 321 U.S. 158, 165 (1944).”

While free exercise of religion is of great concern to

this Court, it hardly occupies the high standing at the bar

of a claim for freedom of speech with respect to public

affairs.

The foregoing discussion of freedom of speech must be

taken to relate to those, and only those, who serve as an-

alysts, commentators and those whose speéch on radio and

television contains in substantial portion expressions of

their own philosophy, conclusions, opinions, bias and evalu-

ation, applied in accordance with their own personal opin-

ions and tenets, and presented as such. Defendant states,

in part correctly, that:

“Freedom of press and speech means expression not

limited to the printed or spoken word. Ideas, im-

—

64e

Opinion of District Court (Brieant, J.)

pressions, analysis and commentary on public per-

sons and affairs also are expressed in song, dance

and pantomime, as comedy, satire, soap operas,

plays, dramatizations, documentaries, even in com-

mercials. ...one picture often expresses more than

a thousand words, whether on a newspaper page or

on a television screen. Even a juggler’s mute per-

formance has been understood as commentary.

Choreographers comment on public persons and

affairs via dance steps which dancers perform with-

out a word spoken. Instrumental music alone can

be expressive. Silence, too, is understood as a form

of expression.” (Affidavit of Edward Schlesinger,

Esq., p. 3, sworn to May 3, 1972.)

This argument misses an obvious distinction. To the

juggler and comic we may add, by way of example, the

impersonator who takes off the manners or diction of a

public figure, in manner to disparage, and the newscaster

reading from a prepared script, who expresses incredulity

by inflection, or merely by moue. But those who do s0,

unlike plaintiffs, are primarily artists, actors and perform-

ers. They are not discharging a duty imposed by statute

upon the broadcasters of furnishing a fair balance of

opinion so that the public may hear that which it needs in

order to act intelligently in the area of self-government.

As to those persons who are actors, artists and profes-

sional talent, the businesses in which they are engaged, or

the services which they perform, are not intimately asso-

ciated with the exercise of First Amendment rights. As to

them, the undoubted need which Congress has found to

exist for trade union protection may be sufficient to justify

such prior restraint as may result. In essence, the juggler,

the comic and the soap opera star are hired as actors; they

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Opinion of District Court (Brieant, J.)

are not hired for the purpose of presenting an opinion to

be passed off as their own sincere views.

Nowhere in the legislative history do we find any Con-

gressional intent to use the statute as a means of stifling

free expression of speech or of the press. The purpose for

which the statute was enacted was to protect working men

in the crafts and unskilled labor, to enable them to bargain

collectively for such things as job security, adequate wages

and fair working conditions. Congress concluded that

under certain circumstances union shop conditions were

necessary to achieve this end, although Congress permitted

a state, if so advised, to provide otherwise (29 U.S.C. 158;

29 U.S.C. §164).

As to artists, actors and professional talent other than

commentators, the union has a reasonable fear against the

erosion of its role in the event that an artist or entertainer

were permitted to “opt out” of the union on a claim of

First Amendment rights.

The fact that in the past employers may have attempted

to evade prior union contracts by passing off as commenta-

tors and analysts those who were not, does not justify the

First Amendment restraint here found.

It is not necessary to declare Section 8(a) (3) unconsti-

tutional on its face in order to effectuate plaintiffs’ rights;

rather we construe the section as not intending to provide

any means whereby a union could place a direct threat of

prior restraint upon a person so situated as are plaintiffs,

as a combined result of (a) compulsory membership; (b)

the need to subscribe to terms and conditions of union dis-

cipline; (e) the need to refrain from speaking through a

broadcast outlet judged unfair, or not organized; (d) the

need to refrain from crossing a picket line; and (e) the need

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Opinion of District Court (Brieant, J.)

to heed any other union directions which would operate

directly or indirectly as a prior restraint on freedom of

speech.

Insofar as Evans is concerned, the record is clear that

he has confined his broadcasting efforts solely to the area

of commentator and analyst on news and public affairs,

expressing his own opinion, philosophy and conservative

bias. Buckley has done all that too, but he has suffered

himself to be called a “TV Star”, and possibly may have

appeared on some program in the past, or may in the future

choose to participate in some program, where the format

may be such as to cast him in the role of a mere entertainer,

without any substantial opportunity to express his personal

opinions, -analysis and comments as such. If so, he must

join Aftra. We do not consider service as a moderator to

be such performance, unless the moderator is restricted by

the program format from expressing any personal phi-

losophy or opinion. If a moderator is cast in the role of an

impartial chairman at a meeting at which others than the

chair have the sole right to exercise their First Amendment

rights, then such a moderator could be required in our view

to submit to Aftra’s Code. The same applies to commenta-

tors on matters such as professional sports, meteorology,

farm prices, fashions, market reports, etc., all of whom

were traditionally covered by Aftra Codes prior to 1967.

The Free Rider

In its brief, defendant argued for the first time (p.

51) that plaintiffs were seeking to be “free riders” in

attaining the benefits of Aftra’s efforts as their collective

bargaining agent, and that if they were not required to

join or pay dues, and presumably, not required to subject

themselves to union discipline, they at the very least, had

to pay to the union an amount equal to the dues.

6— 3 — a . —

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Opinion of District Court (Brieant, J.)

Defendant urged that paying such a toll to Aftra “is

certainly no more violative of free speech than are the

tolls imposed by federal, state and city governments cross

a bridge over the River Platte, for admission to the bar, to

_ do business as an employment agency or inr.umerable other

professions, occupations or enterprises.” (Brief, p. 51,

et seq.) '

Plaintiffs, in rejoinder, suggest correctly that the mere

making of this argument does not constitute “a frank

recognition of error and a permanent disclaimer of claims

so long insisted upon.“ (Plaintiffs’ reply brief, p. 20.)

The pleadings and the prior conduct of the parties

clearly indicate that what is at issue, and what has been

litigated, is the question of the requirement of member-

ship and subjection to union discipline of a commentator

or news analyst. More is involved in this controversy

than mere payment of a modest dues bill, and the prior

conduct of the union and the prior conduct of the employ-

ers required by the union agreement make it appropriate

that these issues be resolved by declaratory judgment.

In this declaratory judgment action, in view of the

prior conduct of the defendant, plaintiffs are entitled te

relief from uncertainty and insecurity with respect to

rights, status and other legal relations. They are entitled

to have their legal relations clarified and to be freed from

such uncertainty, insecurity and controversy.

The “free rider” argument, raised tentatively, and

for the first time in the brief, does not moct the lawsuits.

Defendant’s dues appear reasonable. Cases holding that

the worker’s only obligation is to pay an amount equal

to dues with no necessity of joining or submitting to union

discipline are based on the theory that “. . . those who

enjoy the fruits and the benefits of the unions should make

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Opinion of District Court (Brieant, J.)

a fair contribution to the unions.” Railway Employees

Department v. Hanson, 351 U.S. 225, 231 (1956, quoting

from Congressional debates); Machinists v. Street, 367

U.S. 740, 750-64 (1961) ; NLRB v. General Motors Cor p.,

373 U.S. 734 (1963).

There is no evidence raising the factual issue contem-

plated by the “free rider” cases, that is whether these

plaintiffs are in fact “free riders,” or whether they do in

fact en

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