Appendix — Forbes v. Arkansas Educational Television Commission Network Foundation
Supreme Court brief1995
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9418566 SEP 19 19% SEP 19 1994
OFFICE Of iit CLERK io a a Ry
No
In The
Supreme Court
of the
Gnited States
October Term, 199_
Ralph P. Forbes,
Petitioner
vs.
AETN-TV, KHOG-TV, et al.,
Respondents
On Petition for Writ of Certiorari
To The United States Court of Appeals
For The Eighth Circuit
APPENDICES - II
Ralph P. Forbes,
Citizen In His Own
Proper Person
Box 88
London AR 72847
501/293-4641
DOP PN ARPES TEL EE TNS ON LEE I RIN, . PUR ae TRE LETTE REET ET ATTAINS Ry NIT AE AL SRR. ARN 0 ARE NR EY SEO ERIN ANOS IE ARAN RR, es SF A ORETE AR i alana FOE Ri ON Bere ow Ege
APPENDIX: Volume II i
Appendices U ~ W; pp. 82a~15la
APPENDIX U:
Rebuttal To State’s Response 82a
The F.C.C. "Reversed" The Courts 84a
No Effective "Comprehensive
Administrative Scheme" 87a
Questions Presented 100 a
The Public’s Paramount Right 102 a
APPENDIX V: Appeal From Order To Dismiss
District Court Lacked Jurisdiction 113 a
The Crux of The Matter -- ---- 125 a
The Courts Have Power -- ---- 127 a
The Fundamental Administrative Evil ---------- 13la
Cause of Action Sufficient ---------------------------- 133 a
APPENDIX W: Combined Rebuttal
Standard of Review ----------------------------0-0-0-020+ l4la
Right of Action ----------------------+-----0--0-0-eeeeeeeene= 142 a
Enforceable Rights ---------------------------+----+++-+-- 144 a
FCC Incompetent To Redress Injuries ----------- 145a
Petitioner Exhausted Administrative
ReMedieS ------------cecnnonneneceneccnenenncseacecacoceceseenee 146 a
Subversive of The Constitution --------------------- 150 a
82a Appendix U
- APPENDIX U
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 92 -3374 -WA
RALPH P. FORBES AND THE PEOPLE
APPELLANTS, et al.
THE ARROGANT ORWELLIAN BUREAUCRATS OF AETN :
APPELLEES et al
4 —_
SUPPLEMENTARY DIGEST OF
POINTS AND AUTHORITIES
>
REBUTTAL TO STATE’S RESPONSE
TO REQUEST FOR REHEARING EN BANC
TO PROTECT THE SOVEREIGN RIGHTS
. OF THE PEOPLE
AND THE LAW OF THE LAND J
* *k *
"Time has proven the discernment of our ancestors; for
even these provisions, expressed in such plain English words
that it would seem the ingenuity of man could not evade
them, are now after the lapse of more than seventy years (or,
now, 200 years), sought to be avoided."
Mr. Justice DAVIS, ex parte Milligan, 4 Wall 2 (118) 1866)
* * *
“As the Supreme Court unanimously held in Red Lion
(Broadcasting Co. v. FCC, 395 U.S. 367: 89 S.Ct. 1794; 23
L.Ed.2d 371 (1969)}:
‘It is the right of the viewers and listeners, not the right
of the broadcasters which is paramount. It is the purpose of
Appendix U 83 a
the First Amendment to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail, rather than to
countenance monopolization of the market, whether it be by
the government or a private licensee. It is the right of the pub-
lic to receive suitable access to social, political, esthetic, moral
and other ideas and experiences which is crucial here. That
right may not constitutionally be abridged.’
Red Lion, at 395 U.S. at 390, 89 S.Ct. at 1806 (citations omitted.)
"THE PROPER INQUIRY FOR THIS COURT, then,
should not be whether the Communications Act grants
state broadcasters editorial discretion, but whether the
action of state officials in these cases abridged free ex-
pression protected by the First Amendment.
x * *
"_.. ({S]peech concerning public affairs is more than self-
expression; its is the essence of self-government.’) Self-
government suffers when those in power suppress competing
views on public issues... See {First Nat’l Bank of Boston v. Bel-
lotti, 435 U.S. 765; 98 S.Ct. 1407; 55 L.Ed.2d 707 (1978)}.
[Emphasis supplied]
Muir v. Alabama Ed. Television Com’n., 688 F.2d at 1055
But protecting speech is not a burden on the nation, but a
vital blessing. As Justice Charles Evans HUGHES said: "... the
more imperative is our need to preserve inviolate the constitu-
tional rights of free speech, free press and free assembly in
order to maintain the opportunity for free political discussion
to the end that government may be responsive to the will of the
people and that changes if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very
foundation of constitutional government."
DeJonge v. Oregon, 299 U.S. 353, 365 (1937)
"(Free and general discussion of public matters seems ab-
solutely essential to prepare the people for an intelligent exer-
cise of their rights as citizens."
Grosjean v. American Press Co., 297 U.S. 233, 250; 56 S.Ct.
444 449; 80 L.Ed. 660 (1936)
"The basis of our government being the opinion of the
people, the very first object should be to keep that right ..."
Thomas Jefferson,
84a Appendix U
Letter to Col. Edward Carrington, Jan. 16, 1787
* * *
THE F.C.C. "REVERSED" DEYOUNG
2-C. All of the precedents cited by State Defendants to
abridge First Amendment Rights, including DeYoung, have
been factually and de jure reversed and fatally invalidated by
the FCC’s own unilateral reversal of the Fairness Doctrine as
more fully shown herein.
In all past cases where the rights of the People to hear
and to be informed and the rights of candidates were restricted
in seeking rights under 47 USC 315, the courts weighed into
the balance at least three counterbalancing factors, the most
important and weightiest by far was The Fairness Doctrine.
This most important of these three balancing factors is
{in fact, all three balancing factors, are} absent from the bal-
ancing equation in the case at bar.
“The magnitude of the present danger (the creation of prop-
aganda organs for the Government) that the statute is designed
to avoid is admittedly a matter about which reasonable judges
may disagree. Moreover, I would agree that the risk would be
greater if other statutory safeguards* were removed..."
{Italics added}
FCC v. LWV of California, 104 S.Ct. at 3136,
468 U.S. at 417 (1984)
The FCC has unilaterally repealed the Fairness Doctrine
by reinterpretation of its own rules in response to the pres-
sures of the powerful broadcaster’s lobby. FCC 87-266, MM-
263, August 4, 1987; FCC 88-131; MM 319, March 24, 1988.
This revocation de facto, if not de jure, reverses all of the
case law based on the supposed mitigating and "balancing"
factor of the bureaucratically dispatched Fairness Doctrine.**
* The basis for the Fairness Doctrine is statutory ... Note 12 at 2106
and and 141; The Fairness Doctrine was recognized and implicitly ap-
proved by Congress in the 1959 amendments to §315 of the Communica-
tions Act ... Note 15, Columbia Broadcasting Sys. Inc., v. Democratic Nat.
Com., 93 S.Ct. at 2127, 412 U.S. at 185 (1973)
Appendix U 85 a
"Thus, under the Fairness Doctrine broadcasters are re-
sponsible for providing the listening and viewing public with
access to a balanced presentation of information on issues of
public importance. The basic principle underlying that respon-
sibility is ‘the right of the public to be informed ..."
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com.,
93 S.Ct. at 2091, 412 U.S. at 113 (1973)
This decision, and all cognate decisions, were predicated on
the cornerstone of the Fairness Doctrine. The CBS decision was
based upon the specific warranty of the FCC that it would
maintain and enforce the Fairness Doctrine against licensees to
protect the First Amendment requirements of the People:
"The {FCC} Commission made it clear, however,
that it does not intend to discard the Fairness Doctrine
a {emphasis added}
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com.,
93 S.Ct. at 2101, 412 US. at 133.
However, the FCC broke faith with the Court, the Con-
stitution, the People, the Congress and its own longstanding
rules and policies by unilaterally revoking and “discarding” the
Fairness Doctrine. This FCC (betrayal) demolished the found-
ations of all the progeny of cases from Red Lion, supra. While
DeYoung, (1990) did not cite the FCC-assassinated Fairness
Doctrine, all of the cases relied upon by the three judge panel
depended upon the FCC-sabotaged Fairness Doctrine.
"Balancing the various First Amendment interests involv-
ed in the broadcast media and determining what best serves the
public’s right to be informed is a task of great delicacy and dif-
ficulty. The process must necessarily be undertaken within the
framework of the regulatory scheme that has evolved over the
course of the past half century. For, during that time, Congress
and its chosen regulatory agency have established a delicately
balanced system of regulation intended to serve the interests of
all concerned." {Italics supplied)
** If a bureaucratic interpretation has the power to disannul or repeal
basic constitutional provisions and alienate inalienable rights and terminate
indefeasible rights, then in such an illogical wonderland it would not be
novel for an unelected bureaucrat to reverse and overturn decisions of the
Supreme Court, including Marbury v. Madison, supra.
86 a Appendix U
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com.,
93 S.Ct. at 2086, 412 U.S. at 102.
This citation was relied on by the appellate court in John-
son v. F.C.C., 829 F.2d at 160, 161, et seq., because "the Com-
mission in developing the fairness doctrine, had attempted to
strike a balance that would satisfy the First Amendment inter-
ests of all concerned." And the pervasive, complex scheme of
regulation provided "several access provisions," etc.
Johnson was decided September 22, 1987. Ironically, the
FCC reversal that closed the remaining access provisions and
pushed the delicately balanced regulatory scheme off the
tightrope was issued after the case was argued but only a few
weeks before the opinion which was based on the presump-
tion that the Fairness Doctrine was alive and well, helping to
prevent the First Amendment from falling to its doom.
The Fairness Doctrine was far from adequate in Petitioner’s view,
but without it, the regulatory scheme is totally unbalanced, and the results
of every decision that weighed it into the balance would have been in favor
of the People and the private Citizen.
"The opinion of the Court of Appeals asserted that the Fairness Doc-
trine, insofar as it allows broadcasters to exercise certain journalistic judg-
ments over the discussion of public issues, is inadequate to meet the
public’s interest in being informed. The present (1972) system, the court
held, ‘conforms . . . to a paternalistic structure structure in which licensees
and bureaucrats decide what issues are “important,” and how "fully" to cov-
er them, and the format, time and style of the coverage.’
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com.,
146 U.S.App.D.C., at 195, 450 F.2d, at 656 ...
"That (Fairness) doctrine admittedly has not always brought to the
public perfect or, indeed, even consistently high-quality treatment of all
public events and issues ...”
Columbia Broadcasting Sys Iuc., v. Democratic Nat. Com.,
93 S.Ct. at 2100, 412 U.S. at 130.
"The Fairness Doctrine, standing alone, is insufficient - in theory as
well as in practice - to provide the kind of ‘uninhibited, robust, and wide-
open’ exchange of views to which the public is constitutionally entitled."
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com.,
93 S.Ct. at 2129, 412 U.S. at 187
Appendix U 87a
("Because of the importance of the values at stake, and
the ability of the defendant usually to offer a colorably per-
missible reason for its action, the trier of fact must critically
examine the asserted rationale for the defendant’s conduct.")
Muir, at 1059, italics supplied
* * *
"Although the scope of the prohibition was phrased in
general terms and applied to a selected group of speakers, it
was obviously directed at spokesmen for a particular point of
view ... It was a classic case of viewpoint-based prohibition."
Comment on Consolidated Edison Co. v. Public Service Comm’n
of N.Y., 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)
Cited in FCC v. LWV of California,
104 S.Ct. at 3137, 468 U.S. 418
Thus, it is clear that the animus against petitioners, as
persons and as a class of free and independent people and
their ideas, is a prejudicial animosity against those, who
champion Free Speech and Independent thought, by those in
the state nomenklatura who feel they have a “divine right," or
at least secular omnipotence, To Suppress And Discriminate
Against Any Who Stray From Their Tyrannical Viewpoint of
"Politically Correct" Thought Control.
"If there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the
principle of free thought - not free thought for those who
agree with us but freedom for the thought that we hate."
Justice Oliver Wendell HOLMES, Jr. in
United States v. Schwimmer, 279 U.S. 644 at 653 (1928)
*x * *
4. THERE IS NO EFFECTIVE "COMPREHENSIVE AD-
MINISTRATIVE SCHEME" TO PROTECT THE
FEDERAL RIGHTS CONFERRED BY 47 USC 315.
In fact the scheme is contrived to prevent any candidate
denied these rights from ever exercising them. This scheme
operated to make it impossible for Petitioner Forbes to have
88 a Appendix U
his rights or remedial day in court. In the "Trinity" letter sub-
mitted by the State, after a page of unabashed bureaucratic
gobbledegook in which the scheme is used to deny Trinity and
the People of California their respective rights. The California
debate was aired on May 17, 1992. The letter was released in
Washington D.C. on May 26th, nine days after the debate. The
election was June 2nd. This scheme that makes a mockery of
justice and due process says: "Application for Review by the
full Commission may be requested within thirty days of public
notice of this letter ... by writing (to) the Secretary, Federal
Communications, Washington, D.C. 20554 ..."
This scrap of paper, this blurry copy of a letter to someone from a
bureaucrat in the FCC has no power to deprive the People, Forbes, or any
American Citizen of their God-given Rights secured by the supreme coven-
ant, the Constitution of the United States.
The obscure FCC letter has less weight than the "administrative sum-
mons" which the Supreme Court condemned as “very oppressive" because it
“appears to be a lawful command on the surface, many citizens, because of
their respect for what only appears to be law, are cunningly coerced into waiv-
ing their rights, due to ignorance ... because it appears to be official and legal
in form ..." United States v. Minker, 350 U.S. 179 at 187
But even if the FCC protected the rights of Candidate
Trinity, it’s ruling would have come too late. For even if the
FCC scheme were not stacked to routinely deny candidate and
the People their rights, it fails, because:
JUSTICE DELAYED IS JUSTICE DENIED.
But the FCC routinely gives sweetheart interpretations to
licensees that censor candidates and viewpoints and ambushes
the People and their Rights in a hopeless cul-de-sac. "Was your
denial in ‘good faith’?" "Why, of course." {Who would answer
otherwise?} “Denial approved because the denier Says it was
done in ‘good faith’."
Governmental opinion of enforceability of FCC rules clearly
depends on partisan interpretation. e.g., See Note 8 at 3112, and
"... the Department of Justice under a new administration an-
nounced that it would defend the statute." {italics supplied}
FCC v. League of Women Voters of California, 104 S.Ct. at 3113
Appendix U 89a
This Court has the power and the duty to set aside any un-
lawful action that is unconstitutional, or arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.
The Constitution of the United States, Article III, Section 2;
Article VI; Amendments I, V & XIV
Administrative Procedure Act, 5 USC 553, 706(2)(a)
Boyd v. United States, 116 U.S. 616 (1886)
Mugler v. Kansas, 123 U.S. 623, 661
In particular, the courts should not “defer’ to the judg-
ment of the ... Commission on a constitutional question, or ...
hesitate to invoke the Constitution ..."
Columbia Broadcasting Sys., Inc. v. Democratic Nat. Com..,
93 S.Ct. 2087; 412 U.S. at 103
* * *
"... The very simple answer to that position {that the
courts defer to the Commission on constitutional questions} is
that FCC regulation is designed neither to preempt judicial
scrutiny nor to redress state censorship as alleged in these
cases." Muir at 1056
"Tl be judge. I'll be jury," said cunning old Fury; "I'll try
sk
the whole cause, and condemn you to death.
Lewis Carroll, Alice’s Adventures in Wonderland, Ch. 3.
"... [While it is true that the FCC hears complaints sim-
ilar to those raised in these cases, it is also true that the FCC
routinely denies relief. A brief review of the cases cited ... re-
veals that the FCC steadfastly refuses to depart from its ‘long-
standing policy of deferring to licensee discretion.’ Right to
Life, Inc. vu. WAVE-TV, 59 FCC2d 1103 (1976.)" Muir, at 1056
"... [T]he FCC routinely defers to licensee ’discretion as to
the manner in which a controversial issue is to be covered, in-
cluding such matters as appropriate spokesman and program
format.’ William Harsha, 31 FCC2d 847 (1971). Muir, at 1057
“Complaints regarding (censorship) decisions are regul-
arly denied (by the FCC)...) Muir, at 1056
90 a Appendix U
"Thus it is clear that the majority's deference to the FCC in
7 these cases that present important constitutional questions
= amounts to nothing more than ‘... a promise to the ear ...’ which
will most certainly be broken ‘to the hope.’ See Cuthbert v.
United States, 278 F.2d 220 (5th Cir. 1960). Relying on the sys-
tem of FCC regulation, the majority has granted state broad-
casters immunity from constitutional scrutiny. There is nothing,
however, in the Communications Act or in the system of FCC
® regulation which prevents judicial scrutiny. On the contrary, the
= Supreme Court has recognized the need for vigilance in the face
of governmental regulation. See, e.g., Red Lion, supra, 395 U.S.
; at 390, 89 S.Ct. at 1806; CBS, Inc. v. Democratic Nat’]. Comm.
» 412 US. at 104-05, 93 S.Ct. at 2087-88. To rely on FCC regula-
= tion is to create a substantial gap in the protection of First
5 Amendment interests. Because the FCC does not distinguish be-
= tween private and public broadcasters in its regulation of the
> airwaves ... it provides no protection from the kind of state cen-
= sorship alleged in these cases. Muir, at 1057
"It is the judiciary which is the ultimate arbiter of the
= fundamental rights involved in these cases.2 Courts may not
abdicate their duty by reference to a system of administrative
regulation, or because they would prefer that the plaintiffs
take their complaints elsewhere." ) Muir, at 1059
2. The very purpose of a Bill of Rights was to withdraw certain sub-
™ jects from the vicissitudes of political controversy, to place them beyond the
® reach of majorities, and officials and to establish them as legal principles to
@ be applied by the courts...
3 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63
S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943) See Wesberry v. Sanders,
376 U.S. 1, 17,18; 84 S.Ct. 526, 534-35; 11 L.Ed.2d 481 (1964).
| ".. [T]he Court has elevated ‘the Communications
: Act above the Constitution.’ "
Barnstone, supra, 514 F.Supp. at 672-73, 686.
5 Moreover, The Court Has Abdicated Its Duty In An Area
= /n Which The Plaintiffs Have No Comparable Remedy...
. Muir, at 1054 (Emphasis supplied.)
Thus, the People and Petitioner Forbes have no adequate
Appendix U 9la
remedy under law other than constitutional courts and at
least action under 42 USC 1981, et seq.
THE UNBALANCED SCALES OF JUSTICE
5. In all past cases where the rights of candidates were re-
stricted in seeking rights under 47 USC 315, the courts weighed
into the balance at least three counterbalancing factors:
(A) The Fairness Doctrine;
(B) Unrestricted access to buy time;
And, (C) alternate means of presenting views.
None of these three balancing factors are present in the
case at bar.
Petitioner respectfully calls the Court’s attention to The
Factual Change That Changes The Results Of All Case
Law from Red Lion through De Young. The FCC unilaterally
repealed the Fairness Doctrine by reinterpretation of its own
rules in response to the pressures of the powerful broad-
caster’s lobby. FCC 87-266; MM-263, August 4, 1987; FCC 88-
131. MM 319, March 24, 1988.
This revocation de facto, and de jure, reverses all of the
case law, including De Young, based on the supposed mitigat-
ing and "balancing" factor of the bureaucratically-dispatched
Fairness Doctrine as more fully shown in petitioner’s "The
FCC "Reversed" DeYoung" in 2-C above.
i e .
Furthermore, as a factual matter, access to commercial
time was also denied Petitioner Forbes because, contrary to
law, the ABC and NBC affiliates, licensed by the FCC to oper-
ate within the third district, censored and refused to air the
FCC-approved ads of candidate Forbes causing him and the
people grave and inestimable, irreparable harm.
The First Amendment; The Due Process and Equal Protec-
tions provisions of the Fourteenth Amendment; CBS, Inc.,
453 U.S. 367 (1981); Communications Act of 1934, Sections
312(a)X7); 315; CFR 73.1940(c);1941(b); 68 FCC 2d 1079
(1978); FCC 8210-AJZ/MJM of 21 August, 1992, et seq.
92a Appendix U
(C) All of the newsmedia in the third congressional dis-
trict, contrary to the standards of professional journalism and
the objective criteria for prioritizing the newsworthiness of
stories, acted in concert to suppress virtually all news of Forb-
es’ candidacy or to present him and his candidacy in an ex-
tremely distorted and inaccurate light.*
In the instant case, all balance is lost, because of the absence
of all alleviating factors: (A) the Fairness Doctrine: (B) the right
to buy time for political advertising; and, (C) the dearth of any ef-
*In any other area of life this would be a crime of theft by deception,
fraud by misrepresentation, or at least a criminal conspiracy to withhold or
suppress critical facts. For example, an insurance salesman would lose his
license if he twisted the truth in this manner. Would an automobile manu-
facture that knew it’s brake design was defective and that its cars were al-
most certain to burst into flames upon impact be allowed to mislead its
customers that its products were safe? Yet the precious property of franchise
and the right to representative government is less protected from fraud by
charlatan counterfeit swindle than a consumer who falls victim to a fast
talking con artist
The effect of all this was to deprive voters of effective suffrage
based upon informed consent: "I wanted to vote for your husband
(Petitioner Forbes), but I was afraid to throw my vote away!" sum-
marizes the quandary that de facto deprived the People of the third district
of their right to freely choose their own representatives. This deceitful Hob-
son's choice is analogous to depriving an innocent accused of his right to
counsel and forcing him to make an uninformed or misinformed choice be-
tween plea bargaining or “throwing your life and freedom away, because you
can't win if you plead not guilty." Miranda v. Arizona, 384 U.S. 436
Petitioner Forbes does not contend that the print media is not free to
lie, censor, warp or distort the news and truth in any way that its conscience
allows; but petitioner does state and aver that ail avenues of presenting his
ideas to the people were effectively and de facto barred in the 3rd district:
even though news media outside the district, including representatives of
Asahi, the largest news medium in Japan, who contacted Forbes because
they believed his candidacy was extremely newsworthy.
Petitioner Forbes respectfully calls the court’s attention to the discus-
sion of the fact, unforeseen in 1791, that "in practical terms the newspapers
and magazine, like TV and radio, are available only to a select few.”
Columbia Broadcasting Sys., Inc. v. Democratic Nat. Com., 93 S.Ct. 2080 at
2114~2116; 412 US. at 159~163; and at 2132,33 and 192-196, respectively
Appendix U 93 a
fective alternative form of communication or expression:
All of the canons and rationale expounded in the pleth-
ora of otherwise sharply divided opinions, concurrences and
dissents in Red Lion and its progeny by many of the wisest
and learned judges and justices, all unite to say in this case;
The constant inroads against the paramount rights of
the people, the steady piling of one sided weights in favor of
broadcasters and bureaucrats against the rights of the People
and of Citizens and Persons who seek to exercise their most
precious and fundamental rights, have combined to cause the
carefully, precariously balanced law to fall from the tightrope;
And this honorable court has the power and the duty to
rescue rule by law by invoking the constitutional safety net.
6. Abridgement of First Amendment Rights by
Congress, the FCC, Commercial Licensees, the Courts,
the AETN Defendants, or Anyone is Prima facie Uncon-
stitutional
*** The .. Defendants cannot hide behind the shameful
fig leaf of bureaucratic interpretations.
"I believe there are more instances of the abridgment of
the freedom of the people by gradual and silent encroachments
of those in power than by violent and sudden usurpations."
James Madison,
Speech in the Virginia Convention, June 16, 1788
The ... Defendants use as a pretense for their violations
of the Constitution and laws, an unconstitutional usurpation
by FCC bureaucrats. But it is mere chicanery that pays hypo-
critical lip service to the First Amendment while ravishing it.
The FCC misuses Chisholm v. F.C.C., 538 F.2d 349 (1976)
as a pretext, an irrational ‘rationale’ to give the state the pow-
ers to abridge the paramount Free Speech Rights of the People
and of Citizens by de facto censoring viewpoints, ideas, expres-
sions and persons. At most, Chisholm, the beachhead used for
invasions against the People’s First Amendment Rights, made
debates sponsored by a non-licensee, provided further that
there is no evidence of broadcaster favoritism, exempt from
94a Appendix U
equal time provisions on a case-by-case basis.
In this case, [1] the sponsor is a licensee. Moreover, [2]
the sponsor is the state. And, [3] there is abundant evidence
of state favoritism on the one hand, and hostility, unreason-
able, arbitrary and capricious discrimination against the
petitioner on the other. And, [4] there is a shameful record of
routine, after the fact, denial by the agency that holds the
People’s Rights by the throat.
But the FCC, given an inch by the courts, has taken miles
and miles of rights. They have trespassed over the boundary,
and once the wall was breached they have encroached on and
claimed all the public’s domain as their very own until there is
no longer a place for the People, the Individual Citizen or for
their Rights. They would banish the Law of the Land from the
Land, and deny by their response even room for the razor thin
paper upon which these rights are written.
The FCC has unilaterally exempted political debates
sponsored by broadcasters. Free of all fear of restraint they
have ultra vires included public licensees, State agents, in the
nomenklatura, the exclusive club of Censors and Czars with
the power to decide what the people may be permitted, or de-
nied the right, to see and hear.
The State has "attempted to bring evidence before the
court" that the FCC has given them carte blanche to censor
and discriminate by attaching a virtually illegible letter, ap-
parently from the FCC, in which the FCC says it has the
power to grant the powers of censorship to privileged licen-
sees; and to "prove it," by pseudo-legalistic tautology, the FCC
says it has the power because the FCC swys because the FCC
says because the FCC says ... ad infinitum, ad absurdum.
7. The FCC Interpretations Used by the ... Defend-
ants are Unconstitutionally Broad, Vague and Uncon-
stitutionally Applied
The power to censor and discriminate against candidates
and viewpoints based on the subjective "good faith news judg-
ment” of FCC licensees is unconstitutionally vague, incapable
of being measured by any objective criteria, is an open invita-
tion to arbitrary, capricious, unreasonable, discriminatory
Appendix U 95a
and viewpoint and/or personality based denial of equal oppor-
tunities, rights and facilities. So vague a phrase is equivalent
to restricting Free Speech to the pleasure and prejudices of a
privileged class, a nomenklatura of state licensed censors ...
Paraphrasing the Court:
"Surely no one would seriously suggest that judicial
independence would be strengthened by allowing re-
moval of federal judges only by ‘a good faith’ determina-
tion by a handful of congressional ‘experts’ on a special
‘Committee to Protect Judicial Independence.’
Bowsher v. Synar, 106 S.Ct., at 3190; 478 U.S., at 730.
This abridgement in "good faith" language is not only
capable of being applied unconstitutionally, it has in fact been
used by the ... defendants to deny the rights of petitioners. |
8. The FCC’s Claimed Powers are Violative of The
Fundamental Principle of Separation of Powers
The FCC’s combined powers of [1] de facto legislating, [2]
executing and [3] judicially interpreting and reviewing and
automatically approving its own actions by post hoc rational-
izations are totally contrary to the spirit and express language
of the Constitution and due process Law of the Land.
a ete
The People retained their inherent Rights and Powers for
themselves and their posterity, with the exception of certain
limited powers which they vested and delegated precisely into
three separate and distinct branches of the government they
created: The Legislative, Article I; The Executive, Article IT;
and the Judicial, Article III, respectively.
INS v. Chadha, 462 U.S. 919, 951;
103 S.Ct. 2764, 2784; 77 L.Ed.2d 317 (1983)
er
"It is a fundamental principle in our institutions, indis-
pensable to the preservation of public liberty, that one of the
separate departments of government shall not usurp powers
committed by the Constitution to another department."
Mugler v. Kansas, 123 U.S. 623, 662 {Italics supplied.}
S6 a Appendix U
The declared purpose of separating and dividing the
powers of government, of course, was to “diffus[e] power the
better to secure liberty."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635;
72 S.Ct. 863, 870; 96 L.Ed 1153 (1953) {Italics supplied.}
Congress has created a nonconstitutional, de facto fourth
branch of government, the bureaucracy, under the general
heading of Independent agencies, of which the Federal Com-
munications Commission, the FCC, is one. Constitutionally,
the FCC is neither fish nor fowl, but like an extraconstitu-
tional monster metamorphosing from a mutant proliferation
of regulations it has taken and usurped for itself the combin-
ed powers of all three branches of lawful government and has
de facto decreed itself higher than: [1] each; and, [2] all of the
three lawful branches of government; [3] the Constitutional
contract which created the balanced and limited government;
and, [4] The People themselves.
"[T]here can be no liberty where the legislative and execu-
tive powers are united in the same person, or body of magis-
trates..." Montesquieu, quoted by James Madison in The
Federalist No. 47, p. 325 (J. Cook ed. 1961). Cited favorably in
Bowsher v. Synar, 106 S.Ct. at 3185; 478 U.S. at 722.
"That to secure these {God-given} rights, Governments are
instituted among Men, deriving their just powers from the con-
sent of the governed ... the Legislative powers, incapable of An-
nihilation, have returred to the People ..." {Italics supplied.}
The Unanimous Declaration fof Independence} of the thirteen
united States of America, In Congress, July 4, 1776.
Legislation to become law must first be properly passed
by both Houses and affirmative or passive approval of the
President or repassed by two thirds of the members of each
House. Article I, Section 7.
“Regulations are not the work of the legislature and do
not have the effect of the law in theory."
Black’s Law Dictionary, Abridged 5th edition, p. 668.
Appendix U 97a
Gradually, the FCC has usurped legislative powers
and exceeded all lawful authority via so-called rulemaking
procedures. These procedures have been so eroded and taken
for granted without checks or balances that mere declaratory
findings and interpretations, devoid of due process, have the
practical effect of legislation.
Congress has no such power to divest itself of nor abdicate
its mandated duties by forfeiting this important, cardinal legis-
lative power entrusted to it by the People, who instituted a rep-
resentative government to secure their innate, God-endowed
Natural Rights. The People specifically delegated their legisla-
tive powers, which are "incapable of annihilation,” to elected
representatives who may not abandon, forsake, nor desert the
People by surrendering this elemental power to any other.
The FCC has also usurped executive powers be-
cause it enforces and interprets both constitutionally enacted
legislation and its own pseudo-"legislation."
"Interpreting the law enacted by Congress to implement
the legislative mandate is the very essence of ‘execution’ of
the law."
Bowsher v. Synar, 106 S.Ct. 3181 at 3191; 478 U.S. 714 at 733
THE FCC HAS ALSO USURPED JUDICIAL POW.
ERS that the People have entrusted to the supreme Court and
inferior Courts constitutionally established by the Congress.
No Court, and certainly no agency, not even contemplated by
the People nor the Constitution, has the lawful authority to
deny [a] the People nor any Person their God-given rights; and
[b] the equal protections thereof; [c] Due Process; and [d] their
Common Law Right to their Day in Court expressly secured by
Section 2 of Article III (& Amendment VID.
Petitioner Forbes respectfully points out that the inferior
courts do not overrule the Supreme Court. And it is well es-
tablished doctrine that no agent, agency or creature may
have powers denied to the higher branch:
Thus, if the king cannot behead an accused unless con-
demned by jury, surely the mayor, the city councilmen, the
municipal judge, the city attorney, the policeman on the beat,
98 a Appendix U
or the sanitation engineer may not either. And, if the king may
not abridge free speech, then surely neither the court jester, the
FCC nor the ... Defendants may lawfully censor speech either.
Thus the ... Defendants usurp powers under color
of not law, but bureaucratic permission, to do what is
denied to it by the Constitution. The FCC, ... a mere
extra-constitutional agency claims to have tyrannical
powers that the Constitution expressly forbids to even
the three constitutional branches of government.
9. The FCC Claims to Power are Beyond Usurpa-
"ETERNAL VIGILANCE IS THE PRICE OF LIBERTY!"
Thomas Jefferson
REMONSTRANCE
By James Madison,
Father of The United States Constitution and Bill of Rights
“The preservation of a free government requires not merely that the
metes and bounds which separate each department of power be invariably
maintained, but more especially that neither of them be suffered to over
leap the great barrier which defends the Rights of the People.
"The rulers who are guilty of such an encroachment exceed the com-
mission from which they derive their authority, and are tyrants.
“Because it is proper to take alarm at the first experiment on our Lib-
erties; We hold this prudent jealousy to be the First Duty of Citizens and
one of the noblest characteristics of the late Revolution.
“The Freemen of America did not wait till usurped power had streng-
thened itself by exercise and entangled the question in precedents.
"They saw all the consequences in the Principle, and they avoided the
consequences by denying the Principle. We revere this lesson too much soon
to forget it."
Letters and Other Writings of James Madison, Fourth President of the
United States, Congress Edition, in 4 Volumes, Philadelphia, 1865
The Defendants and the FCC have "usurped power
and strengthened" this usurpation "by exercise and en-
tangled the question in precedents."
Appendix U 99 a
tion, They Are an Extortion to Transmute Our Republic
Under Law into a Sneering Tyranny
"As Usurpation is the Exercise of Power, which another
hath a Right to; so Tyranny is the Exercise of Power beyond
Right, which nobody can have a right to..."
John Locke, The Works of John Locke, Esq., In Three
Volumes; Of Civil Government, Chapter XVIII, Of Tyranny,
p. 199, London, 1714
"Unlimited Power Is Apt To Corrupt The Minds Of Those
Who Possess It; And This I Know, My Lords, That Where Law
Ends, Tyranny Begins."
William Pitt, Case of Wilkes. Speech (January 9, 1770]
"The only prize much cared for by the powerful is power.
The prize of the general is not a bigger tent, but command."
Law and the Court, Justice Oliver Wendell Holmes, Jr., 1913
Without effective checks and balances the capacity for self-
aggrandizement with all power aggregating into the hands of a
nomenklatura of privileged licensees and contemptuous bureau-
crats, the mere claim to unabridgeable rights for the People by
Petitioner Forbes is disparaged as a civil "sin."
"WHERE LAW ENDS, TYRANNY BEGINS."
John Locke, Second Treatise of Government, Sec. 202 [1690]
"Power tends to corrupt and absolute power corrupts ab-
solutely." Lord Acton,
Letter to Bishop Mandell Creighton, [April 5th, 1887]
This FCC claim is beyond separation of powers. It
is the raw consolidationof all powers in a virtually un-
restrained agency. Even when acting properly and not viol-
ating constitutional rights, the FCC is NOT the Legislature. It
is NOT the Executive. Jt is NOT the Judiciary. The FCC was
created to protect the People from the unregulated power of
broadcasters, not to conspire or to be misused to deprive the
People of their God-given rights.
The Rights to Freedom of Speech, to express and to hear, all
100 a Appendix U
political Rights are secured under the First Amendment. The
Fourteenth Amendment guarantees equal protection of the
laws. The Common Law Rights to Justice and Juries are implied
and expressed throughout our Constitution and the Law of the
Land. So-called "administrative remedies" may not deny First
Amendment Rights and Equal protections, and then deny due
process and right to redress in the courts and trial by jury.
Neither the FBI, the CIA, nor any other federal law enfor-
cement agency has lawful authority to give state officials per-
mission to murder or assassinate citizens. Neither does the
FCC have the lawful authority to give (defendants) permission
to assassinate rights protected by the First Amendment.
For the State Defendants or any private persons or en-
tities to claim that an unelected regulatory agency in Wash-
ington D.C. has been delegated powers to give them license to
deprive the People and/or any Citizen of their Rights and their
Rights to Equal Protection of the Laws and their Day in Court
is prima facie intolerable.
Furthermore, it is a violation of Due Process.
* * *
Statement Of Separation, Usurpation & Tyranny
Questions Presented
Does the court defend the doctrine of inherent separation
of powers from ultra vires usurpations?
And does it limit agencies of public power from tyranni-
cally arrogating powers expressly denied to any agency or
arm of government whatsoever?
“Necessity is the plea of every infringement of human
liberty; it is the argument of tyrants; it is the creed of slaves."
William Pitt
It may make it easier on Congress, whose individual
members fear the power of a united and hostile association of
media, to look the other way when the FCC operates in total
contempt and opposition of congressional intent; but that
does not make it right or lawful.
Appendix U 10la
Petitioner herein incorporates the entire dissenting
Opinion of the honorable Circuit Judge J. Skelly WRIGHT in
Chisholm, 358 F.2d at 366~396, and respectfully requests
this honorable Court to consider its inescapable logic in its
deliberations.
It may may be convenient for Congress to avoid its dut-
ies and responsibilities, and it may lessen the load on our
overworked courts if the courts simply go along with the fic-
tion that the FCC has the powers to do whatsoever pleases
the licensee broadcasters and that the FCC procedures are
"fair and adequate” because the FCC evaluates itself and
finds itself above and beyond reproach; but:
"... the fact that a given law or procedure is efficient, con-
venient, and useful in facilitating functions of government,
standing alone, will not save it if it is contrary to the Consti-
tution. Convenience and efficiency are not the primary objec-
tives - or the hallmarks - of democratic government..."
ILN.S. v. Chadha, 462 U.S., at 944;
103 S.Ct., at 2781; 77 L.Ed.2d 317 (1983).
Petitioner respectfully suggests that the workloads and
calendars of the courts will be saved from perpetual petitions
from Citizens whose rights have been violated if this Court
will courageously do its duty and clearly and unambiguously
protect the First Amendment Rights of the People and of indi-
vidual candidates and viewpoints from the censorship and
suppression by bureaucrats and licensees under color of bur-
eaucratic decrees and Orwellian double-think.
The history of the convoluting of the letter and intent of
regulation of privileged licensees to abridge the essential right to
Freedom of Speech into an unrecognizable mockery is a history
of repeated injuries and usurpations, all having in direct object
the establishment of an absolute Tyranny over the People.
* * *
"As Justice STEVENS observed in Consolidated Edison
Co. v. Public Service Comm’n. of N.Y., 447 U.S. 530, 100 S.Ct.
2326, 65 L.Ed.2d 319 (1980), however: ‘A regulation of speech
that is motivated by nothing more than a desire to curtail ex-
102 a Appendix U
pression of a particular point of view on controversial issues of
general interest is the purest example of a "law ... abridging
the freedom of speech, or of the press." A regulation that denies
one group of persons the right to address a selected audience
on "controversial issues of public policy" is plainly such a regul-
ation.’ Id., at 546, 100 S.Ct., at 2333-2334 ... ‘[t]he First
Amendment’s hostility to content based regulation extends not
only to restrictions on certain viewpoints, but also to prohibi-
tion of public discussion of an entire topic, id., at 537 , 100 S.-
Ct., at 2333, we must particularly wary in assessing
{restrictions of speech} to determine whether it reflects an im-
permissible attempt ‘to allow a government [to] control ... the
search for political truth.’ Jd., at 538, 100 S.Ct., at 2333."
FCC v. League of Women Voters of California,
104 S.Ct. at 3119-3120
* * x
13. THE PUBLIC’S PARAMOUNT RIGHT TO KNOW
"... Congress may ... seek to assure that the public receives
through this medium a balanced presentation of information
on issues of public importance that otherwise might not be ad-
dressed if control of the medium were left entirely in the hands
of those who own and operate broadcasting stations."
FCC v. League of Women Voters of California,
104 S.Ct. at 3116
"... those who are granted a license to broadcast must
serve in a sense as fiduciaries for the public by presenting
‘those views and voices which are representative of [their] com-
munity and which would otherwise, by necessity, be barred
from the airwaves.’ Red Lion Broadcasting Co. v. FCC, 395
U.S. 367 at 389, 89 S.Ct. 1794 at 1806, 23 L.Ed.2d 371 (1969).
"As we observed in (Red Lion) because ‘{iJt is the-purpose
of the First Amendment to preserve an uninhibited market-
place of ideas in which truth will ultimately prevail ... the right
of the public to receive suitable access to social, political, es-
thetic, moral and other ideas and experiences [through the
medium of broadcasting] is crucial here [and it] may not be
constitutionally abridged either by Congress or by the FCC.’
Appendix U 103 a
Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806." 104 S.Ct. at 3116
* * *
There is a "substantial government interest” in ensuring
adequate and balanced coverage of public issues.
FCC v. League of Women Voters of California,
104 S.Ct. at 3116
The public has a "First Amendment interest in receiving
a balanced presentation of views on diverse matters of public
concern." FCC v. League of Women Voters of California,
104 S.Ct. at 3117
"Similarly, in CBS, Inc. v. FCC, 453 U.S. 367, 101 S.Ct.
2813, 69 L.Ed.2d. 706 (1981), the Court upheld the right of ac-
cess for federal candidates imposed by § 312(a)(7) of the Com-
munications Act both because that provision ‘makes a
significant contribution to freedom of expression by enhancing
the ability of candidates to present, and the public to receive,
information necessary for the effective operation of the demo-
cratic process,’ id., 453 U.S., at 396, 101 S.Ct., at 2830 ... and of
guarding against ‘the risk of an enlargement of Government
control over the content of broadcast discussion of public is-
sues.’ " Columbia Broadcasting Sys., Inc. v. Democratic Nat.
Com., 412 U.S. at 123-125, 93 S.Ct. 2080 at 2096-2097 (1973)
"As we recently reiterated in NAACP v. Clairtorne
Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215
(1982) ‘expression on public issues "has always rested on the
highest rung of the hierarchy of First Amendment values." ’
Id., at 913, 102 S.Ct., at 3426 (quoting Carey v. Brown, 447
U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 [1980)]).
And we have emphasized:
‘The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss
publicly and truthfully all matters of public concern with-
out previous restraint or fear of subsequent punishment ...
Freedom of discussion, if it would fulfill its historic function
in this nation, must embrace all issues about which infor-
mation is needed or appropriate to enable the members of
society to cope with the exigencies of their period.’
Thornhill v. Alabama, 310 U.S., at 101-102, 60 S.Ct., at 744.
104a Appendix U
"’... Debate On Public Issues Should Be Uninhibited, Rob-
ust And Wide-Open.’ New York Times Co., v. Sullivan, 376 U.S.
254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964)" cited in
FCC v. League of Women Voters of California, 104 S.Ct. at 3118
* *k *
"Congress was, however, cognizant of the fact that the
Nation’s airwaves are a public resource not subject to private
ownership." Muir at 1039
"... [T]he People as a whole retain their interest in free
speech by radio and their collective right to have the medium
function consistently with the ends and purposes of the First
Amendment." Red Lion, 395 U.S. at 390; 89 S.Ct. at 1806.
"[S]peech Concerning Public Affairs...
Is The Essence Of Self-Government."
Garrison v. Louisiana, 379 U.S. 64, 74-75:
85 S.Ct. 209, 216; 13 L.Ed.2d 125 (1964)
The First Amendment must therefore safeguard not only
the right of the public to hear debate, but also the right of in-
dividuals to participate in that debate and to attempt to per-
suade others to their points of view. See, e.g., Thomas uv.
Collins, 323 U.S. 516, 537; 65 S.Ct. 315, 325; 89 L.Ed. 430
(1945); cf. NAACP v. Button, 371 U.S. 415, 429-430;
83 S.Ct. 328, 335-337; 9 L.Ed.2d 405 (1963)
[I]t is imperative that we take special care to preserve
tne vital First Amendment interest in assuring ‘self-fulfill-
ment [of expression] for each individual.’
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96:
92 S.Ct. 2286, 2290; 33 L.Ed.2d 212 (1972)
Even for commercial licensees who have an interest in
exercising reasonable journalistic control over the use of their
assigned frequencies, nevertheless,
"The Right Of Free Speech Of A Broadcaster...
Does Not Embrace A Right To Snuff Out The Free
Speech Of Others." {Emphasis added}
Red Lion, 395 U.S., at 387, 89 S.Ct. at 1805.
Appendix U 105 a
"No Man In This Country Is So High That He Is
Above The Law. All The Officers Of The Government,
From The Highest To The Lowest, Are Creatures Of The
Law, And Are Bound To Obey It." U.S. v. Lee, 106 U.S. 196
Therefore, Right and Justice and the Constitution
should not be trampled by trivial technicalities and entang-
ling precedents or bureaucratic interpretations that are mere-
ly Curia Regis, an unlawful usurpation of the judicial powers
conferred by the People to the lawful courts. The People and
Plaintiffs and their rights must not be abandoned to the tend-
er mercies of death trap bureaucratic schemes.
It Is A Common Law Maxim That Everyone Shall Have
A Remedy For An Injury Done To His Person Or Property.
The common law right to a jury trial is explicitly em-
bodied in the Sixth and Seventh Amendments to the United
States Constitution.
Gannett C. v. De Pasquale, 99 S.Ct. 2898; 61 L.Ed.2d 608 (1979)
Under the Federal Rules of Civil Procedure there is no
longer any procedural obstacle to the assertion of legal rights
before juries, however the party may have acquired standing
to assert these rights. (Italics added]
Rose v. Bernhard, 396 U.S. 531; 90 S.Ct 733; 24 L.Ed.2d 729
The word "legal" as used in statutes, is a term of art; in
situations in which "legal" relief is available and "legal"
rights are determined, the Seventh Amendment provides a
right tojury trial. Lorillard Div. of Loew’s Theatres, Inc. v.
Pons, 434 U.S. 575; 98 S.Ct. 866; 55 L.Ed.2d 40
A plaintiff may opt for a jury trial in an action founded
upon Bivens v. Six Unknown Fed Narcotics Agents, 403 U.5.
388; 29 L.Ed.2d 619; 91 S.Ct. 1999, in which it was recoz-
nized that in some circumstances the victims of a violation of
the Federal Constitution ... have a right to recover damages
... 1n federal court despite the absence of any statute confe,-
ring such a right. {Italics added]
Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468; 64 L.Ed.2d 15
—
ae
$$$
106 a Appendix U
The Declaratory Judgment Act (28 USC $§ 2201, 2202)
specifically preserves the right to jury trial. {Italics added]
Beacon Theatres Inc. v. Westover, 359 U.S. 500;
79 S.Ct. 948; 3 L.Ed.2d 988
Free Speech, Free Of Government Censorship And
Discriminatory Trespasses, Is Irrepealable Law
"The founders of our government were familiar with the
history of the struggle for liberty and they made secure in a
written Constitution every right ... Time has proven the dis-
cernment of our ancestors; for even these provisions, ex-
pressed in such plain English words that it would seem
the ingenuity of man could not evade them, are now
after the lapse of more than seventy years {or 200
years}, sought to be avoided.
"Those great and good men foresaw that troublous times
would arise ... and that the principles of Constitutional liberty
would be in peril, unless established by irrepealable law. The
history of the world had taught them that what was done in
the past might be attempted in the future. The Constitution of
the United States is a law for rulers and people, equally in war
and in peace, and covers with the shield of protection all clas-
ses of men, at all times, and under all circumstances. No
doctrine, invoiving more pernicious consequences, was ever in-
vented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government {or
by innocuously appearing "policy matters"). Such a doctrine
leads directly to anarchy or despotism ...
Wicked men, ambitious of power, with hatred of liberty
and contempt of law, may fill the place once occupied by
Washington and Lincoln ... Our fathers knew that unlim-
ited power was especially hazardous to freemen."
Mr. Justice DAVIS, in ex parte Milligan, 4 Wall 2 (118) (1866)
- Ill - THIS APPEAL IS NOT MOOT
Johnson v. FCC, 829 F.2d. 157 (D.C. Cir. 1987), cited by
the State, is another case in which it was found that notwith-
standing the fact the election was over, challenge of minority
party party presidential and vice-presidential candidates to
Appendix U 107 a
their exclusion from televised debates was not moot, as it was
case where controversy was capable of repetition yet evading
review. See also Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705 at 125
This case, Johnson, took strongly into consideration [1] |
the Fairness Doctrine, which the FCC has since revoked; and
[2] the fact that in this case the sponsor was not a broadcaster,
but a third party; thus, this case also upholds Petitioners and
vanquishes the State’s defense.
ee
Throughout all the cognate lines of cases, the courts have
reiterated over and over again the necessity of "case-by-case in- |
quiry" because of the inherent complexity of balancing rights
as the courts attempt to "walk the tightrope" "in the light of
the particular circumstances of each case." {Italics added}
e.g., Columbia Broadcasting Sys., Inc. v. Democratic Nat.
Com., 93 S.Ct. 2080 at 2121 (1973)
FCC v. League of Women Voters of California, 104 S.Ct. 3106
’We can not allow any single person or group to place
themselves in [a] position where they can censor the
material which shall be broadcasted to the public, nor do I
believe that the Government should ever be placed in the
position of censoring this material.’ Hearings on H.R.
7357 before the House Committee on the Merchant
Marine and Fisheries, 68th Cong., Ist Sess., 8 (1924).
"That statement foreshadowed the ‘tightrope’ aspects of
Government regulation of the broadcast media, a problem the
Congress, the Commission, and the courts have struggled
with ever since...
Columbia Broadcasting Sys. Inc., v. Democratic Nat. Com..,
93 S.Ct. at 2087-88, 412 U.S. at 105
* * * :
And while strangling the First Amendment with
the frayed remnants of this tightrope, the ... Defend-
ants have the effrontery to argue that these twin evils
are "justified" by the very tightrope balancing act that
was developed to prevent this evil misuse of the people’s
airwaves.
ae
j
:
108 a Appendix U
No matter how well intentioned and reasoned; based on
facts that no longer exist {i.e., the FCC’s broken promise of
perpetuating the Fairness Doctrine}, petitioner contends that
the overall effect of the trend of the decisions, accelerated by
a voracious interpretation by broadcasters and certain per-
sons in the FCC, is that we are rapidly sliding down a slip-
pery slope to a point of no return, in which the People and
individual Citizens will have no rights; so it is the imperative
duty of the Court to wield the constitutional lifeline to save
the American People from falling to their doom.
B. This case is not moot, also, because patently prepost-
erous denials of Free Speech and Equality before the law is
subversive of public respect for the courts, and the Supreme
Court now gives this factor great weight. The public’s con-
fidence in the courts to preserve a constitutional Republic will
be undermined, if the People in their common sense and in-
stinctive sense of justice and fairness perceive the Court to be
swallowing camels while choking on gnats: If the burning of
American Flags, the imagery of religious symbols immersed
in urine, etc., are expressions protected by the First Amend-
ment; then why may (defendants) deny the People their
right to hear the only popularly enfranchised can-
didate for U.S. Congress ...?
* Kk *
“The Court’s power lies, rather, in its legitimacy, a
product of substance and perception that shows itself in the
people’s acceptance of the Judiciary as fit to determine what
the Nation’s law means and to desire what it demands.
"... Thus, the Court’s legitimacy depends on making
legally principled decisions under circumstances in which
their principled character is sufficiently plausible to be ac-
cepted by the Nation.
"... If the Court’s legitimacy should be undermined, then,
so would the country be in its very ability to see itself through
its constitutional ideals. The Court’s concern for legitimacy is
not for the sake of the Court but for the sake of the Nation to
which it is responsible."
Opinion of Supreme Court of The United States in Planned
Parenthood of Southeastern Pennsylvania, et al., v. Casey, Gov-
ernor of Pennsylvania, et al., No.s 91-744 & 91-90, at 23-24, 26
Appendix U 109 a
* * *
-IV- THE INESCAPABLE CONCLUSION
WHEREFORE, BECAUSE [1] The Constitution is the
Supreme Contract it is Controlling, and [2] The Rights of The
People are Paramount, [3] the Constitution may not be over-
ruled; nor the Rights of the People be abridged, nor Denied by
Any Rule or Precedent ...
And, [4] because De Young, and all of the precedents cited
by ... Defendants to abridge First Amendment Rights, have
been factually and de jure reversed, and fatally invalidated by
the FCC’s own unilateral reversal of the Fairness Doctrine;
And, [5] because of prohibited ... Prejudice and Hostility;
And, [6] because there is no effective "comprehensive ad-
ministrative scheme" to protect the federal rights conferred
by 47 USC 315;
And, [7] because The Scales of Justice have been Un-
balanced by the deprivation of: (A) The Fairness Doctrine; (B)
Unrestricted access to buy time; (C) And, alternate means of
presenting views;
And, [8] because the Abridgement of First Amendment
Rights by Congress, the FCC, Commercial Licensees, the
Courts, the AETN Defendants, or Anyone is prima facie Un-
constitutional;
And, [9] because the FCC Interpretations used by the ...
Defendants are prima facially Unconstitutionally Broad,
Vague; and, [10] Unconstitutionally Applied in this instance;
And, [11] because the FCC’s Claimed Powers are Viola-
tive of The Fundamental Principle of Separation of Powers;
And, [12] because the FCC Claims to Power are Uncon-
stitutional;
SS a a
And, [16] because of the Public’s Paramount Right to
Uae
ee
110a Appendix U
Know ... (all rules) that abridge the rights protected by the
First Amendment must be overruled;
And, [17] because it is far past time to reverse the menac-
ing trend of diluting, giving up and losing fundamental rights.
It is time to reverse and right the wrongs that violates and per-
verts the inviolate Law of the Land; and have eroded and dis-
sipated our most basic rights to the point where state officials
(and privileged licensees with affirmative fiduciary duties) may
contemptuously deny the People their right to be informed, to
censor the viewpoints and ideas of a popularly nominated can-
didate and blatantly discriminate against persons, ideas and
classes they oppose.
This Appeal is Not Moot because [1] it is a case where
controversy is capable of, and doomed to repetition, yet evad-
ing review.
And this case is not moot because [2] the public’s con-
fidence in the courts to preserve a constitutional Republic will
be undermined if the protections commonly understood to be
be afforded by the First and Fourteenth Amendments are
abridged by the courts.
Therefore, for each and all of the foregoing reasons De-
Young (and the December 16, 1992, order of the district court)
must be reversed as to any effects that abridge rights secured
by the First Amendment and/or deprives or denies any person
the equal protections of the laws;
And this honorable Court has the imperative, affirmative
duty to correct the course ~ to prevent our ship of state from
sailing off the guarded course of a popular Republic under
law into harms way, the hazardous deadly seas of an im per-
ial, totalitarian statism ~ by fashioning appropriate and effec-
tive remedy;
Wherefore, appropriate and effective remedy to prevent
further damage to the People, to the Republic, to the Con-
stitution, to Petitioner Forbes and to all other candidates who
may come after is required from this honorable Court.
siicidlainiainnseataieana ii
Appendix U llla
Respectfully submitted,
s/ Ralph P. Forbes
Ralph P. Forbes, Plaintiff
In his own proper person,
Box 88
London, AR 72847
501/293-4641
AFFIDAVIT OF VERIFICATION OF FACT
State of Arkansas
SS County of Pope
I, Ralph P. Forbes, verify that the information contained
herein is true and correct to the best of my knowledge and
belief.
s/ Ralph P. Forbes
Ralph P. Forbes
Subscribed and affirmed before me this s/ 7 Day of s/ Decem-
ber, 1992.
My Commission expires June 30, 1996.
s/ Karen P. Forbes
Karen P. Forbes
Notary Public
ll2a Appendix U
CERTIFICATE OF SERVICE
I, Ralph P. Forbes, verify that I have served true and cor-
rect copies of the foregoing to the Defendants and/or their coun-
sel at the following addresses believed by me to be their place of
business, this 16 th Day of December, 1992, by U.S. mails.
Mr. Thomas S. Gay, #77053
Senior Assistant
Attorney General
For AETN State Defendants
200 Tower Building
323 Center St., Ste. 200
Little Rock, AR 72201
501/682-2007
Mr. Robert L. Jones, III, #69041
Attorney for KHBS-TV Defendants
JONES, GILBREATH, JACKSON & MOLL
401 N. 7th
P.O. Box 2023
Fort Smith, AR 72902-2023
501/782-7203
Appendix V 1l3 a
APPENDIX V
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 93 -1031 -WA
Ralph P. Forbes And The People
Appellant
— On Appeal from the Unit-
Vv
ed States District Court
Arkansas Educational yy “ou
Communications Networ for the Western District
Foundation, Et Al., of Arkansas
Appellees.
APPEAL FROM "ORDER TO DISMISS"
~
"Those then, who controvert this principle,
that the Constitution is to be considered in court
as a paramount law, are reduced to the necessity
of maintaining that courts must close their eyes
on the Constitution and see only the law.
"This doctrine would subvert the very found-
ation of all written constitutions."
Marbury v. Madison, 5 U.S. 137 at 176,
1 Cranch 37, 163, 2 L.Ed. 60 (1803)
* * *
May it please the Court, comes Ralph P. Forbes plain-
tiff/appellant and appeals from the Order of the United States
District Court, Western District of Arkansas, Fort Smith
Division, Civil No. 92-2190, dated December 16, 1992, for each
and all of the following reasons and for each and all of the reas-
ons in petitioner’s separate Brief re the unconstitutional re-
sults of De Young v. Patten, 898 F.2d 628 (8th Cir. 1990)
1.
The District Court Did Not Have Jurisdiction To Dismiss.
ll4a Appendix V
"This case [92-3374WAFS] is before us on petition for re-
hearing." The Order and Opinion, of the Eighth Circuit Court,
remanding the case back to the district court to "determine the
case and enter final judgment," was not issued until December
22, 1992, six days after the district court’s "final order."
This over eagerness to dismiss by the district court is
more than a matter of comity. The jurisdiction of the Circuit
Court precluded and preempted the untimely order. Courts
have found both election law and FCC questions not moot, be-
cause capable of review. e.g., Johnson v. F.C. C., 829 F.2d 157
(D.C. Cir. 1987). This premature dismissal would have been a
procedural predicament if some meaningful relief could have
been fashioned, or if De Young had been reversed. The district
court erred in disregarding plaintiffs answer to motion to dis-
miss pointing out that the case had been removed to the
Clerk of Court for the Eastern District of Arkansas and the
case was before the 8th Circuit Court.
The premature order dismissing the case with prejudice
was predicated on the district court’s analysis that "De Young
was binding precedent and dispositive of the matter." Contra-
ry to this, the 8th Circuit Court’s Order of December 22,
1992, a week after the order appealed from, instructed the
district court to "vacate its order, denying preliminary injunc-
tive relief on the merits, and to enter a new order, denying
the motion for preliminary injunction as moot."
Because "The underlying case is not moot."
If these instructions to the court below have been fol-
lowed plaintiff has not received copies of the order to vacate
nor the new order.
> 2 2
Plaintiff appealed immediately. Plaintiff is still recover-
ing from the costs of the campaign, and unfortunately was
compelled to apply for leave to proceed in forma pauperis.
The district court denied petition on grounds this appeal was
“not taken in good faith.”
Where indigent plaintiff inmate presented nonfrivolous
claim, denial of in forma pauperis status or similar relief for
no apparent reason rendered otherwise adequate postdepriv-
ation remedy inadequate, so that inmate should be permitted
Appendix V llia
to pursue 42 USC § 1983 action on merits.
Williams v. St. Louis County, (1987, CA8 Mo) 812 F.2d 1079
Jones v. Morris, (1985, CA7 Ill) 777 F.2d 1277
Johnson v. Kempf, (1986, CA11 GA) 781 F.2d 1570
Nilsson v. Coughlin, (1987, SD NY) 670 F.Supp. 1186
2. All the reasons the court below gave for dismissal in
its five page, single spaced letter to the parties, dated
December 16, 1992, were erroneous.
Petitioner requested an opinion of the court with his
notice of appeal:
"PLEASE TAKE NOTICE Plaintiffs in the above styled
matter intend to appeal the Order of December 16, 1992. Pur-
suant to the right to appeal and due process Petitioner-in-
chief requires a particular and sufficient finding of fact and
conclusion of law from Judge H. Franklin Waters."
No such particular and sufficient finding of fact and con-
clusion of law has been provided. All that petitioner has to
base his appeal on is this somewhat vague, conclusory, five
page rationalization, which apparently is meant to be a de
facto opinion. It is a veritable Procrustean bed on which
plaintiffs cause must fit the prejudged doom; if the law or the
facts are too short, stretch them, if they are too long, chop
them off. Petitioner does not know if this letter has the force
of law, but he believes he has no choice but to first point out
the various misconceptions and errors in the letter, leading
up to the crux of the matter on which all decisions and ap-
peals must ultimately be decided.
3. The court below erred when it failed to liberally con-
strue the pleadings.
Pro Se complaints, according to the Supreme Court, are
held "to less stringent standards than formal pleadings by
lawyers..."
Haines v. Kerner, 404 U.S. 519, 30 L.Ed.2d 652, 92 S.Ct. 594
Rehearing Denied 405 U.S. 948, 30 L.Ed.2d 918, 92 S.Ct. 963
1l6a Appendix V
"The election is approximately two weeks from the filing of
this case. Plaintiff Forbes is campaigning night and day. But
the blatant transgression against the people and Forbes by
AETN has left Plaintiff Forbes no option but to turn to this
court to protect his rights, the rights of the voters and the in-
tegrity of the electoral process."
{Original "Emergency Complaint
Against Bureaucrats & Politicians," p.2}
Former congressional candidate presented a justiciable
claim under 42 USC 1985(3) where it was alleged that sta:
agents violated his constitutional rights to engage in political
activities and the rights of voters within plaintiffs district to
exercise their electoral rights without being target of decep-
tive or illegal practices by governmental agents.
Lowenstein v. Rooney, (1975, ED NY) 401 F.Supp. 952,
21 FR Serv 2d 12
In his Answer to the Motions to Dismiss, Petitioner For-
bes averred he is:
[4.] ... a layman untrained in law who was forced to take
invaluable time in the midst of a political campaign and work
around the clock to prepare the first version of the pleadings,
which of necessity wzre not ina final version; prepare appeals
for a one judge hearing, a three judge panel and the appellate
court en banc. And prepare a second version of the pleadings
under emergency conditions in which priceless rights needed to
be protected under powerful and limited time constraints.
5. It was the actions of the Defendants that are the casus
belli that necessitated this complaint. Time was of the essence
of prevent irreparable injury, therefore it was the actions of the
AETN and KHBS-TV Defendants that forced Plaintiff Forbes
to take immediate, even if incomplete, defensive process in
order to prevent the irreversible ravagingof the innumerable,
priceless rights endangered by the Defendants.
6. Plaintiffs have cause of action pursuant to the United
States Constitution Article I. Section 2; Article III, Section 2:
Article IV, Section 4; Article VI; And Amendments I, VII, IX,
X and IVX, thereto; 42 USC 1981, et seq.
Appendix V 117a
7. Plaintiff exhausted all reasonable and lawful admin-
istrative remedies. Moreover, important constitutional ques-
tions re these so-called administrative remedies are presently
before the appellate court.
Under Fed.R.Civ.P. 8, technical niceties of pleading are
not required. Rather a short and plain summary of the facts
sufficient to give fair notice of the claim asserted is sufficient.
Conley v. Gibson, 355 U.S. 41,47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)
"... the district court had no jurisdiction to dismiss case
for failure to state a cause of action *** without hearing the
plaintiffs ***."
Gutensohn v. Kansas City Southern Ry.Co.,
140 F.2d 950, 933 (8th Cir. 1944)
In 42 USCS §§ 1983 cases involving alleged violation of
express substantive constitutional right, it is only necessary
to allege that there was a deprivation ot constitutional right
under color of law ... (general rule)
Pro se plaintiff who does not refer to 42 USCS §$§ 1983 in
complaint, who mentions Fourteenth Amendment only briefly,
and who relies exclusively on Title VII (42 USCS §2000e et seq.)
on appeal should nonetheless be allowed opportunity to pursue
claim under § 1983 and Fourteenth Amendment where, liberally
construed, complaint does state claim for relief.
Haddock v. Board of Dental Examiners, (1985 CA9 Cal)
777 F.2d 462, 39 BNA FEP Cas 764.
Radcliff v. Landau, (1989, CA9 Cal) 883 F.2d 1481,
clarified (CA 9) 1989 U.S. Ap LEXIS 17364
Cahill v. Carroll, (1988, ED Pa) 695 F.Supp. 836
Grattan v. Burnett, (1983, CA4 Md) 710 F.2d 160
Rubin v. O’Koren, (1980, CA5 Ala) 621 F.2d 114
Complaint by pro se plaintiff should have expansive
reading and be held to less stringent standard than pleadings
drafted by attorneys.
Cruz v. Cardwell, (1973, CA8 Mo) 486 F.2d 550
Byrd v. Stewart, (1987, CA11 Ga) 811 F.2d 554
Baily v. Wictzack, (1990, MD Fla) 735 F.Supp. 1016
118 a Appendix VY
Nance v. Kelly, (1990, CA2 NY) 912 F.2d 605
Any plaintiff who can allege deprivation of federal right
by reason of action under color of law can maintain action
under this sub-chapter.
Nationwide Amusements, Inc. v. Nattin,
(1971, DC La) 325 F.Supp. 95
"The court cannot know, without hearing the parties,
whether it may be possible for appellant to state a claim enti-
tling him to relief, however strongly it may incline to the belief
that he cannot *** The right to a hearing on the merits of a
claim over which the court has jurisdiction is of the essence of
our judicial system, and the judge’s feeling that the case is
probably frivolous does not justify by-passing that right."
Harmon v. Superior Court, 307 F.2d 796 (1962)
Addison v. The Grand Lodge of International Association
of Machinists, 300 F.2d 863 (9 Cir. 1962)
Russell v. United States, 306 F.2d 402 (9 Cir. 1962)
This section making any person who, under color of law
deprives U.S. Citizen of constitutional rights, liable to injured
party is to be construed liberally.
Nanez v. Ritger, (1969, DC Wis) 304 F.Supp. 354
Pleadings should be construed liberally in favor of the
pleader. The theory of the complaint is to be determined by
its main and material allegations. A pleading is judged by its
substance and not its form. Actions erroneously brought
under inappropriate law may be transferred.
United States v. White County Bridge Commission.
275 F.2d 529 (7th Cir. 1960)
Ifa very flawed complaint in a civil action for maintenance
of a bridge instituted by the United States Attorney can be re-
stored and won by appellate reconstruction, then surely a pro se
complaint alleging violations striking at the heart of the most
precious, vital and fundamental constitutional rights must not
be strangled by a narrow bias against petitioner and his cause.
4. The court below erred when it failed to recognize
that "42 USC 1981, et seq.," were intended to mean §§
Appendix V 119 a
1983 and 1985 allegations
"et seq. = Latin et sequens = and the following; Latin et
sequentes, et sequentia = and those following;"
The American_College Dictionary, Random House, 1969 ed.
Plaintiff, because of failure to enforce his rights by either
the AETN defendants or the FCC "administrative protectors,"
was forced to write his original complaint during the week
end of October 17-18th. Because of the demands of his cam-
paign, etc., he was forced to "wing it," to work around the
clock, without benefit of research, law library, etc. Plaintiff
knew that the statutes he invoked were "somewhere" in the :
so-called "Reconstruction," or "Ku Klux Klan" or "Civil
Rights" acts aka "1981, et seq." Clearly, the pleadings did not
allege racial discrimination, but violations under color of law
{§ 1983}; and violations which are protected against even
private conspiracies {§ 1985}. At all times plaintiff made it
clear that he needed an opportunity to amend complaint.
The court below should have measured the Complaint
against the appropriate sections, rather than "1981."
Or, in the alternative, if a strict, narrow reading is held;
the prejudice against pleading should not be bar to new ac-
tion against defendants for same violations and injuries
under applicable statutes.
Denial of leave to amend complaint to allege violation of §
1983 rather than § 1985 was error. It should have been grant-
ed, not withstanding unjustified delay, where rejection of
amendment would preclude plaintiff from being heard on
merits on facts which were well known to all parties and which
were pleaded at outset although relief was erroneously sought
under § 1985, and defendant would only be lightly prejudiced.
Moore v. Paducah, (1986, CA6 KY) 790 F.2d 557
White v. Bond, (1983, CA8 Mo) 720 F.2d 1002
Gordon v. Leeke, (1978, CA4 SC) 574 F.2d 1147,
cert den 439 U.S. 970, 58 L.Ed2d 431, 99 S.Ct 464
Triplett v. Leflore County, (1983, CA10 Okla)
712 F.2d 444, 36 FR Serv 2d 1257
120a Appendix V
Lundt v. Hodges, (1985, ND Iowa) 627 F.Supp. 373
United States v. ex rel. Smith v. Heil,
(1970, ED Pa) 308 F.Supp. 1063
Richmond v. McElyea, (1990, ED Tenn) 130 FRD 377
9. The Court Below Erred When It Failed To Grant
Leave And Suffivient And Ample Time For Plaintiff To
Amend The Pleadings.
"10. Plaintiff Forbes apologizes to the court for the hasty
manner in which this complaint had to be prepared, and he
begs leave to amend this pleading by being more particular in
the multitude of invasions of rights by the defendants and the
continuing violations of 42 U.S.C. 1981, et seq."
{Original "Emergency Complaint Against Bureaucrats &
Politicians," pp.4-5}
“This Complaint embraces and must comprehend a long
string of abuses and pattern of continuing conspiracy against
the people and their rights. The instant case against KHBS-
TV, et al, as more fully shown is further proof of the arrogance
and malice of this wicked conspiracy against the people and
their inherent rights to choose their own representatives based
upon their informed consent. And therefore, Petitioner Forbes
requires at least thirty (30) days past the election of November
3rd to adequately prepare his pleadings and he Stipulates that
no defendant is required to answer the complaint until after
they have received the fully amended pleadings,
{Amended Complaint, emergency addition of KHOG
Defendants, p. 7)
‘1. The Motions to dismiss are premature because the
Complaint itself has not been amende d to include all of the
Plaintiffs and Defendants and causes of Action as stated in
the emergency pleadings and in the Supplementary emergen-
Dismissals should not be applied so as to subvert liberq/
20licy favoring amendment of complaints as expressed in
, a) i
FRCwP Rule 15/a), and consideration should be given for im-
Appendix V 12la
portant policies that pro se litigants not be denied opportunity
to state civil rights claims because of technicalities, and that
litigation where possible should be decided on merits.
Kaufman v. Moss, (1973, CA3 Pa) 420 F.2d 1270,
cert den 400 U.S. 846, 27 L.Ed2d 84, 91 S.Ct 93
University graduate student who brought pro se 42
USCS § 1983 claim alleging sex discrimination by university
should be fairly freely afforded opportunity to amend com-
plaint, even if request was made after court entered judgment
dismissing original complaint.
Bobal v. Rensselaer Polytechnic Inst., (1990, CA2 NY)
916 F.2d 759, 16 FR Serv 3d 431,
amd, on reh (CA2) 1990 U.S. App LEXIS 18658
District Court abused its discretion in dismissing sua
sponte group of 42 USC § 1983 claims against police officers
in their official capacities without giving plaintiffs oppor-
tunity to amend complaints.
Perez v. Ortiz (1988, CA2 Conn) 849 F.2d 793
Lundt v. Hodges, (1985, ND Iowa) 627 F.Supp. 373
Salahuddin v. Cuomo, (1988, CA2 NY) 861 F.2d 40
Cunningham v. Ward, (1976, CA2 NY) 546 F.2d 481
Second amended complaint will not be dismissed pend-
ing leave to amend.
Del Signore v. McKeesport, (1988, WD PA) 680 F.Supp. 200
Partridge v. Two Unknown Police Officers,
(1986 CA5 Tex) 791 F.2d 1182
Denying $1983 plaintiffs leave to amend complaint was error.
Stevens v. Gay, (1986, CA 11 Ga) 792 F.2d 1000
Rose v. Bartle, (1989, CA3 Pa) 871 F.2d 331
Hill v. Shelander, (1991, CA7 Ill) 924 F.2d 1370,
reh den, en banc (CA7) 1991 U.S. App LEXIS 4798
Letter by pro se inmate to judge in 42 USCS § 1983
action should have been broadly construed as as amendment
to complaint.
Pearson v. Gatto, (1991, CA7 Il) 933 F.2d 521
Haley v. Dormire, (1988, CA8 Mo) 845 F.2d 1488
122a Appendix V
Leave to amend complaint should be freely given when
justice requires, particularly in case of pro se civil rights
plaintiff who has not had benefits of discovery.
Mathis v. Clerk of First Dept., Appellate Div.
(1986, SD NY) 631 F.Supp. 232
Plaintiff will be allowed to amend her complaint to, inter
alia, add claim under 42 USC 1983 and to increase ad damnum
clause, despite plaintiffs delay of three months between the
time she filed her complaint and time she moved to amend.
Gordon v. New York State Dormitory Authority,
(1983, SD NY) 565 F.Supp. 143
6. The Court Below Erred When It Failed To Ap-
prehend The Claims And Differentiate Among Named
And Unnamed Defendants
The Complaint which alleges: "a systematic and general
conspiracy by the Defendants, under color of law, to deny the
Plaintiffs and all American Citizens their basic Constitution-
al Rights by unlawfully changing this constitutional Republic
of Law into a soviet-like dictatorship in which party bosses,
bureaucrats, and powerful special interests shall alone have
the power to decide who may or may not run for elective of-
fice; and to deny the American People their fundamental!
Rights protected by the First Amendment by censoring ideas
and opinions that do not conform their own plans a for post-
American ‘new world order.’ "
... Uses phrases such as "The Defendants have continu-
ously conspired to deprive ...;" and, "Certain of the defendants
conspired" to show that unknown and named defendants
acted individually, together and with others to deprive plain-
tiffs of their rights to constitutional government in a general
pattern of deprivations over the years sufficiently alleges con-
spiracy. Kwoun v. SE Missouri Professional Standards
Review Organization, (1985, ED Mo) 632 F.Supp. 520, later
proceeding (ED Mo) 632 F.Supp. 1091, affd (CA8 Mo) 811
F.2d 401, cert den (US) 100 L.Ed2d 226, 108 S.Ct. 1994
The style of the case, which described unnamed defen-
dants as "Crooked Lying Politicians," the "Special Interests."
Appendix V 123 a
and certain Media ‘Personalities’ and the Orwellian Bureau-
crats of AETN and Governor Clinton, as a necessary party, in
which the AETN defendants were specifically named for their
discriminatory exclusion of plaintiff, should have made it self
evident that the charges of massive, discriminatory targeted,
illegal closings of polling places required by law to be open in
1990, were not alleged against AETN defendants, but certain
unnamed "crooked lying politicians."
Petitioner’s colorful appellations made in the heat and im-
mediate threat against his most precious and vital rights should
not be used to demean or negate the seriousness of the charge.
"The Sixth Circuit has held, and we agree, that the nght
to cast a ballot in a state election is also protected from inter-
ference from private conspiracies by the federal Constitution.
Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); see also
Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964); Smith v. Cherry, 489 F.2d 1098, 1100-
1101 (7th Cir. 1973)."
Means v. Wilson, 522 F.2d at 838 (8th Cir. 1975)
7. The court below erred when it failed to sua sponte
protect the rights of plaintiff, the people and the sub-
stantive constitutional questions raised.
Rules of court are procedural and should not be construed
to impair the nghts of litigants as to substantive rights and law.
28 USC 2072
The court below should have been perpetually protective
of pro se litigant’s rights, and to be on guard to forewarn him
of any procedural or technical errors by him that would place
the basic relief prayed in his case in jeopardy.
"It is the duty of the courts to be watchful for the ... rights
of citizen, and against any stealthy encroachments thereof.
Their motto should be obsta principiis."
Hale v. Henkle, 201 U.S. 43 at 88
Boyd v. US, 116 U.S. at 635
a A th tt sna
—— eee eee
Se
124a Appendix V
Black’s Law Dictionary defines the Latin motto, obsta
principiis, to mean to "Withstand at the beginning; resist the
first approaches or encroachments."
{2nd Edition, 1910, at 845; 5th Edition, 1979, at 972}
Dismissal with prejudice of pro se 42 USC § 1983 action
was abuse of discretion, and written notice of dismissal on
merits should have been given before case was dismissed.
Palmer v. Decatur, (1987, CA7 Ill) 814 F.2d 426
Elliott v. Bronson, (1989, CA2 Conn) 872 F.2d 20
Reynolds v. Shillinger, (1990, CA10 Wy) 907 F.2d 258
District Court improperly dismissed complaint of pro se
plaintiff under 42 USC 1983 where plaintiff had twice amend-
ed complaint on his own initiative, where court did not advise
plaintiff in what respects second amended complaint was defi-
cient, nor did court allow plaintiff leave to amend, and where it
was not absolutely clear that plaintiff could not amend com-
plaint to allege constitutional violations.
Noll v. Carlson, (1987, CA9 Cal) 809 F.2d 1446
Karim-Panahi v. Los Angeles Police Dept.,
(1988, CA9 Cal) 839 F.2d 621
District court must be sensitive to problems of pro se
plaintiff in civil rights actions and not too quick to dismiss
complaint for failure to state technica] cause of action.
Martin v. Wainwright, (1976, CA5 Fla) 526 F.2d 938
8. The Court Below Erred When It Said, "Forbes|’]
Right To Participate In Televised Debates And Air
Political Advertisements Stems Entirely From ...
47 U.S.C. § 315(a)"
"The privileges and immunities of citizens of the United
States, protected by the XIVth Amendment. are those arising
out of the essential character of the federal government, and
granted or secured by the Constitution: and due process of
law and the equal protection of the laws are secured if the
laws operate on all alike, and do not subject the individual to
the arbitrary exercise of the powers of government."
Duncan v. Missouri, 152 U.S. 382
Appendix V 125 a
Plaintiffs rights arise from and are rooted in God-given,
inherent, natural, indefeasible rights protected by the United
States Constitution, Amendments I & XIV, et seq.
The defendants’ duties stem in part from the equal time
provision of the Federal Communications Act as well as in in
numerous other provisions cited by plaintiff in his submissions.
In addition to § 315 KHOG defendants are implicated by
Section 312(a)(7) of the Communications Act of 1934, strong
case law, CBS v. FCC, etc., and FCC regulations.
9. THE CRUX OF THE MATTER: The court below erred
when it said, the FCC has broad remedial power, and
"Forbes’ sole remedy ... lies solely within the admin-
istrative powers of the FCC."
"The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury."
Marbury v. Madison, 1 Cranch 37, 163,
5 U.S. 137, 2 L.Ed. 60 (1803)
"Everyone shall have a remedy for an injury done to his
person or property." Maxim of Common Law
"The cooperation and help of laymen, as well as of lawyers,
is necessary if the mght of reasonable access to the courts is to be
available to the indigent among us. Reasonable access to the
courts is a right {secured by the Constitution and the laws of the
United States}, being guaranteed as against state action by the
due process clause of the fourteenth amendment."
Justice DOUGLAS in Johnson v. Avery, 393 U.S. 483, 498
Additional Jurisdiction
In addition to remedies provided by $$ 1983 and 1985 of
Title 42:
28 USC §$ 13831l(a)_ ... 28 USC 1343
126a Appendix V
As more fully shown in petitioner’s separate Brief, the
FCC’s "comprehensive enforcement mechanism for protection
of a federal right," is a mere chimera, a sham, a mockery that
fails to protect asserted rights and serves as a cloak to
destroy those same rights under color of law. Plaintiff did
everything he could to protect his rights through the FCC.
His rights were abrogated, and he suffered great harm be-
cause the FCC "comprehensive enforcement mechanism" is a
worthless prophylactic, unwholesome snake oil. Like Means,
plaintiff Forbes sought relief [through ... channels] and was
denied an effective timely remedy.
"* * * We express no view of whether exhaustion of tribal
remedies is a prerequisite of federal relief ... because we find
that the plaintiffs made every reasonable attempt to exhaust
their ... remedies. .. We find that plaintiffs have done all they
could to exhaust ... remedies in this case, but their right ... has
been frustrated by inaction ... ‘The plaintiffs sought relief [thr-
ough ... channels] and were denied an effective timely remedy.’
Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973).
Means v. Wilson, 522 F.2d 833 at 837 (8th Cir. 1975)
* *
The FCC would not or could not protect plaintiffs rights.
Now that the irreparable harm has been done, the FCC is
powerless to restore, in the words of the 8th Circuit Order of
December 22, 1992, "relief with respect to it to have any mean-
ing.” But, unlike the Court, the FCC is powerless to com pen-
sate the plaintiff with remedial, compensatory and exemplary
damages. The FCC has no remedy. Contrary to the words of
the district court below: Forbes’ sole remedy ... lies solely
within the courts, not the administrative powers of the FCC.
Proof that Congress intended for persons harmed by failure
to protect rights to exercise their rights to seek judicial remedy
is the fact that no hint of remedial redress by the FCC can be
found. Moreover, if Congress attempted to remove the protection
of basic, substantive rights protected by the Constitution beyond
the aegis of the judicial shield, it would be unconstitutional.
Please see Plaintiffs separate Brief and excerpts from Wong
Yang Sung v. McGrath, 70 S.Ct. 445, 339 U.S. 33, infra.
Appendix V 127 a
10. The Courts Have Power To Redress The Wrongs
In This Case
The Fourteenth Amendment authorizes Congress to
reach purely private conduct. "Viewed in its proper perspec-
tive, § 5 of the Fourteenth Amendment appears as a positive
grant of power, authorizing Congress to exercise its discretion
in fashioning remedies to achieve civil and political equality
for all citizens * * *"
United States v. Guest, 383 U.S. 745, 782-784
86 S.Ct. 1170, 1191-1192, 16 L.Ed.2d 239
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971)
Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971)
Scott v. Moore, 640 F.2d 708 (1981) at 725
* *K *
The district court found it had jurisdiction pursuant to
42 USC §§ 1981, 1982, 1983 and 1985(3), and their accom-
panying jurisdictional statutes, 28 USC §§ 1343(1), 1343(3)
and 1343(4). The Eighth Circuit, En Banc, found that the Dis-
trict Court had jurisdiction under 1985(3) and, therefore, did
not address the applicability of the other sections.*
Action v. Gannon, 450 F.2d at 1229 (8th Cir. 1971)
*In 1975 the Eighth Circuit said "28 U.S.C. § 1343 is the
statute which actually gives the court jurisdiction to redress
violations of the substantive statutes named."
Means v. Wilson, 522 F.2d at 837, (8th Cir. 1975) n.2.
The Eighth Circuit, En Banc, ruled [1] that 42 USC §
1985(3) gave the court jurisdiction over the conspiracy; and
(2] the constitution provided the court with its source of
power to encompass the conspiracy under §§ 1 and 5 of the
Fourteenth Amendment. Action v. Gannon, 450 F.2d at 1231-
1233, including footnote 8, (8th Cir. 1971)
Plaintiff incorporates herein, the discussion and reason-
ing of the court at 1231~1238 in Action v. Gannon, upholding
the sufficiency anc constitutionality of this case.
"* * * Tt is thus apparent that the right to vote in federal
128 a Appendix V
elections is a right of nationa! citizenship protected from con-
spiratorial interference by 42 U.S.C. § 1985(3)."
Means v. Wilson, 522 F.2d 833 at 838 (8th Cir. 1975) citing;
Griffin v. Breckenridge, 403 U.S. 88, 106;
91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)
United States v. Classic, 313 U.S. 299, 314-315,
61 S.Ct. 1031, 85 L.Ed. 1368 (1941)
Ex Parte Yarbrough, 110 U.S. 651, 658-662,
4S.Ct. 152, 28 L.Ed. 274 (1884)
"Today we hold that 42 USC § 1985(3) protects the right
to vote in ... elections against interference from private con-
spiracies as well.
“Since the right to vote in a system of representative gov-
ernment is one of the essential trappings of citizenship
protected by the Constitution, we hold that Congress has
necessarily granted it to the plaintiffs, and in a proper case,
interference with the right to vote ... may be vindicated under
42 U.S.C. § 1985(3) as a deprivation of equal protection of the
laws or equal privileges and immunities under the law."
Means v. Wilson, 522 F.2d 833 at 839 (8th Cir. 1975)
11. "IMPLIED" PRIVATE CAUSE OF ACTION
IS NOT REQUIRED
"* * * Federal courts have the power to afford all remed-
les necessary to the vindication of federal substantive rights
defined in statutory and constitutional provisions except
where Congress has explicitly indicated that such remedy is
not available."
Brewer v. Hoxie School District No. 46, 238 F.2d 91 at 98
(8th Cir. 1956) (Emphasis supplied by Plaintiff. }
There is no explicit language in Title 47. nor Title 42. to
preclude the District Court from presiding over trial to pro-
tect constitutional rights pleaded.
x x =
12, FREEDOM OF SPEECH & EQUAL RIGHTS
Appendix V 129 a
"..[T]he Court has made it abundantly clear that First
Amendment rights are protected by § 1 of the Fourteenth
Amendment.” See n.9.
Action v. Gannon, 450 F.2d at 1234 (8th Cir. 1971)
n.9. See, for instance, New York Times v. Sullivan, 376 U.S.
254, 276, 77, 84 S.Ct. 710, 724, 11 L.Ed.2d 686 (1964), and the
cases cited therein; Louisiana ex rel. Gremillion v. NA.A.C.P.,
366 U.S. 293, 81 S.Ct. 1333, 6 L.ED.2D 301 (1961); Shelton v.
Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, (1960);
Staub v. Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302
(1958); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84
L.Ed 1213 (1940); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666,
82 L.Ed. 949 (1938); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct.
255, 81 L.Ed. 278 (1937); Grosjean v. American Press Co., 297
U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).
Paraphrasing the Court: Plaintiff Forbes has a right to ex-
press the views of himself and the classes he represents, equally
with others, free of censorship, prior restraint, discrimination
and other abridgements, infringements and trespasses. "The
fact that the ... opinions may be offensive to the (defendants)
does not render them outside the protection of the First Amend-
ment." Organization for a Better Austin v. Keefe, 402 U.S. 415,
91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bachellar v. Maryland, 397
U.S. 564, 90 S.Ct. 13812, 25 L.Ed.2d 570 (1970); Street v. New
York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). As the
Supreme Court has said:
"* * * [A] function of free speech under our system of gov-
ernment is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatis-
faction with conditions as they are, or even stirs people to anger.
Speech is often provocative and challenging. It may strike at
prejudices and preconceptions and have profound unsettling ef-
fects as it presses for acceptance of an idea. That is why freedom
of speech, though not absolute * * * is nevertheless protected
against censorship or punishment, unless shown likely to pres-
ent a clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance or unrest. * * *"
Terminiello v. Chicago, 337 U.S. 1, 4,
69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949).
130 a Appendix V
Action v. Gannon, 450 F.2d at 1232 (8th Cir. 1971)
"(T]he Supreme Court has characterized the right of free
association as ‘a right which, like free speech, lies at the found-
ation of a free society.’ Shelton v. Tucker, 364 U.S. 479, 486, 81
S.Ct. 247, 251, 5 L.Ed.2d 231, 236, (1960). Our legal system
honors the freedorn of the individual to associate as he chooses
because that freedom ‘tends to produce the diversity of opinion
that oils the machinery of democratic government and insures
peaceful, ordevly change.’ Gilmore v. City of Mobile, 417 U.S.
556, 577, 94 S.Ct. 2416, 2427, 41 L.Ed.2d 304, 321, (1974). The
importance of freedom of association has led the court to call it
one of the ‘indispensable liberties, NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d
1488, 1499 (1958), which ranks ‘among our most precious free-
doms.’ Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21
L.Ed.2d 24, 31 (1968). The right of association is fundamental
in our constitutional scheme of values."
Scott v. Moore, 640 F.2d 708 (1981) at 722
The invasions against plaintiffs are in violation of express
constitutional rights embracing every facet of the First Amend-
ment, speech, all basic political rights, association and assemb-
ly, petition and the redress of grievances, even the free exercise
and establishment of a "politically correct" state religion; both
the Equal Protections and Due Process provisions of the Four-
teenth Amendment; and in violation, at least of 42 USC $$
1983 and 1985; and 47 USC 8§ 312 and 315.
While, it is true that Congress has not expressly prov-
ided remedy for injuries caused by violation of 47 USC §§ 312
and 315, this court and the Supreme Court have ruled that it
ls not necessary. It is clear that every person is entitled toa
remedy at law; and that the Courts have a duty to help fash-
10n such remedies.
"The courts are not bound by mere forms, nor are they to
be misled by mere pretences. They are at liberty - indeed they
are under a solemn duty - to look at the substance of things,
whenever they enter upon the inquiry whether the legislature
has transcended the limits of its authority. If, therefore, a
Appendix V 13la
statute {or regulation, or interpretation thereof} purporting to
have been enacted to protect the public health, the public
morals, or the public safety {or the public’s right to know) has
no real or substantial relation to for defeats} those objects, or
is a palpable invasion of rights secured by the fundamental
law, it is the duty of the courts to so adjudge, and thereby
give effect to the Constitution."
Mugler v. Kansas, 123 U.S. 623, 662 {Italics supplied.}
13. CURING "THE FUNDAMENTAL
ADMINISTRATIVE EVIL"
In respect to Defendants’ hiding behind the “interpreta-
tions" and "procedures" of the FCC, Petitioner respectfully
calls this honorable Court’s attention to the following prin-
ciples enunciated by the Supreme Court:
"Multiplication of federal administrative agencies and
expansion of their functions to include adjudications which
have serious impact on private rights has been one of the dra-
matic legal developments of the past half century. ... The con-
viction developed, particularly within the legal profession,
that this power was not sufficiently safeguarded and some-
times was was put to arbitrary and biased use.
"Concern over administrative impartiality and response
to growing discontent was reflected in Congress ... Fears and
dissatisfaction increased as tribunals grew in number and
jurisdiction *** The Executive Branch of the Federal Govern-
ment also became concerned as to whether the structure and
procedure of these bodies was conducive to fairness in the ad-
ministrative process. {at 448, 36-38}
"More fundamental, however, was the purpose to curtail
and change the practice of embodying in one person or agency
the duties of prosecutor and judge. {The "fundamental" "ad-
ministrative evil ... to be cured" was the carrying on of} judi-
cial functions under conditions which threaten the impartial
performance of that judicial work. The discretionary work of
the administrator is merged with that of the judge. Pressures
and influence properly enough directed toward officers re-
sponsible for formulating and administering policy constitute
an unwholesome atmosphere in which to adjudicate private
rights. But the mixed duties of the commissions render es-
132 a Appendix V
cape from these subversive influences impossible.
"Furthermore, the same men are obliged to serve both
as prosecutors and judges. This not only undermines judicial
fairness; it weakens public confidence in that fairness. Com-
mission decisions affecting private rights and conduct lie
under the suspicion of being rationalizations of the prelimi-
nary findings of the commission, in the role of prosecutor,
presented to itself.’ {at 70 S.Ct. 450, 339 U.S. 41-42}
"*k** And the Attorney General’s Committee on Adminis-
trative Procedure ... was unanimous that this evil existed. Its
Final Report said: ‘These types of commingling of functions of
investigation or advocacy with the function of deciding are
thus plainly undesirable ...’ {70 S.Ct. at 451, 339 U.S. 44)
"*** The constitutional requirement of procedural due
process of law derives from the same source as Congress’ pow-
er to legislate and, where applicable, permeates every valid
enactment of that body." {70 S.Ct. at 454, 339 U.S. 49}
Wong Yang Sung v. McGrath, 70 S.Ct. 445, 339 U.S. 33
This case involved the procedural rights of illegal aliens.
How much more should the courts protect the most essential,
substantive, inherent, indefeasible rights of the individual
Citizen and the Nation, all the People.
As evil as it was, a procedure was established whereby
non-citizens could attempt to find justice. But in the instant
case, Congress has not provided an administrative or quasi-
judicial remedy to afford compensation and restitution for
persons whose First and Fourteenth Amendment protected
rights have been violated.
Neither the FCC bureaucrats nor the FCC licensed defen-
dants take an oath to uphold the Constitution. Unlike the fed-
eral judiciary who are made relatively independent and free
from political and other pressures by the immunities of life
time tenure and salaries that may not be lowered if they make
decisions that would displease powerful interests; the FCC and
its agents are twisted and torn by some of the wealthiest and
most powerful special interests in the country. The electorate
is outraged by the revolving door in which the regulators regu-
Appendix V 133 a
late the public in the interests of that which they are supposed
to regulate. Plaintiffs’ substantive, most fundamental rights
are abolished under color of FCC interpretations, and yet
Plaintiffs are told they must beseech the FCC for redress. And
the FCC, even if it were so inclined, has no power to compen-
sate persons whose rights have been annihilated.
If an agency, or even the legislature, clearly misinterprets
or nullifies a constitutional provision, the frequent repetition of
the wrong will not make it right. (Amos v. Mosley, 77 So. 619)
Under the principles of powers, it is settled that the leg-
islature may not confer judicial functions upon the members
of the executive branch of government. Ministerial officers
are incompetent to to receive grants of Judicial powers from
the legislature, and their acts in attempting to exercise such
powers are necessary nullities. 16 AmJur 2d $ 328
Nor, may the people look to Congress to rein in the power-
ful masters of the media. If the fourth estate has the power to
bring down a presidency, reelect or defeat a congressman, how
rare will be a courageous representative worthy to be mentioned
in the profiles of courage, much less an effective majority?
14. Plaintiff's Case States Sufficient Cause Of Action
The denial of express rights, and the denial of equal en-
forcement of the laws by defendants was motivated by hostil-
ity to plaintiff, his ideas and views, and the classes and their
interests that plaintiff seeks to represent and defend.
This is an action provoked by a "class-based, invidiously
discriminatory animus behind the conspirators’ action." It is a
conspiracy that aimed "at a deprivation of the equal enjoyment
of rights secured by the law to all. Griffin v. Breckenridge, 403
U.S. 88, 102; 91 S.Ct. 1790, 1798; 29 L.Ed.2d 338, 348 (1971)
The court added in footnote 10: "The motivation require-
ment introduced by the word ‘equal’ into the portion of $
1985(3) before us must not be confused with the test of ‘specif-
134 a Appendix V
ic intent to deprive a person of a federal right made definite
by decision or other rule of law’ articulated by the opinion in
Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031,
1036, 89 L.Ed. 1495, for prosecution under 18 USC § 242.
Section 1985(3), unlike § 242, contains no specific require-
ment of ‘wilfulness.’ Cf. Monroe v. Pape, 365 U.S. 167, 187,
181 S.Ct. 473, 484, 5 L.Ed.2d 492. The motivation aspect of §
1985(3) focuses not on scienter in relation to deprivation of
rights but on invidiously discriminatory animus."
"Our cases have firmly established that (constitutionally
protected rights do) not necessarily rest on the Fourteenth
Amendment, and (claims are) assertable against private as well
as governmental interference. Shapiro v. Thompson, 394 U.S.
618, 629-631, 89 S.Ct. 1322, 1328-1330, 22 L.Ed.2d 600; id., at
642-644, 89 S.Ct. at 1335-1336 (concurring opinion); United
States v. Guest, 383 U.S. 745, 757-760 and n. 17, 86 S.Ct. 1170,
1177-1180, 16 L.Ed.2d 239; Twining v. New Jersey, 211 U.S. 78,
97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Slaughter-House Cases, 16 Wall
36, 79-80, 21 L.Ed. 394; Crandall v. Nevada, 6 Wall 35, 44, 48-
49, 18 L.Ed. 744; Passenger Cases (Smith v. Turner), 7 How.
283, 492, 12 L.Ed. 702 (Taney, C.J., dissenting).
"(T]he Supreme Court decided in 1971 to ‘accord the
words of the statute their apparent meaning’ and held section
1985(3) provided a civil remedy for damages against wholly
private infringements of constitutionally protected rights.
Griffin v. Breckenridge, 403 U.S. 88, 97; 91 S.Ct. 1790, 1795:
29 L.Ed.2d 338, 345 (1971)"
Scott v. Moore, 640 F.2d 708 (5th Cir. 1981) at 715
Griffin established four elements for plaintiff to establish
cause of action: [1] conspiracy; [2] purpose of depriving, directly
or indirectly, any person or class of persons of the equal protec-
tion of the laws, or of equal privileges and immunities under
the laws; [3] one or more of the conspirators must commit some
act in furtherance of the conspiracy; whereby [4] another is
either (a) injured in his person or property or (b) deprived of
having and exercising any right or privilege of a citizen of the
United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103:
91 S.Ct. 1790, 1795; 29 L.Ed.2d 338, 348 (1971)
Appendix V 135 a
The 5th Circuit added a fifth element: (5) that the con-
spirators’ conduct must be unlawful independent of the sec-
tion 1985(3) violation. McLellan v. Mississippi Power & Light
Co., 545 F.2d 919 (5th Cir. 1977)(en banc). This was super-
seded, Wilson v. Harris Trust & Sav. Bank, (CAT Ill) 777 F.2d
1246, and disagreed with by many cases, see Traggis v. St.
Barbara’s Greek Orthodox Church, (CA2 Conn) 851 F.2d 584.
Instant [Forbes] case meets all four elements of the Grif-
fin test, plus the superfluous "independent" transgression.
Ironically, because it meets the fifth test, the independent
violation of Title 47 sections by defendants, the lower court
penalizes plaintiffs rather than upholding the pleadings.
Title 47 also regulates the rates commercial licensees,
such as the KHOG defendants, may charge candidates. All four
commercial television stations that unlawfully censored candi-
date Forbes’ political ads have almost 50% of their market
areas outside of Arkansas, in Oklahoma, Missouri and Kansas.
While it is true residents of sister States could not vote for For-
bes, many Arkansans may have had an opportunity to have
seen one of Forbes’ ads while exercising their right to travel in
one of the adjoining States if the defendants had not censored
the ads. And, the candidacy of plaintiff may have been helped
by contributions from viewers in adjoining States. Plaintiff had
the right to express his views, based on quotations from Scrip-
ture and Thomas Jefferson with all Americans.
Commerce clause empowered Congress to reach private
conspiracy. Article I, section 8, clause 3 "extends to those ac-
tivities intrastate which so affect interstate commerce, or the
exertion of the power of it, as to make regulation of them ap-
propriate means to the attainment of a legitimate end, the ef-
fective execution of the granted power to regulate interstate
commerce." United States v. Wrightwood Dairy Co, 315 U.S.
110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726, 732 (1942). "If it is
interstate commerce that feels the pinch, it does not matter
how local the operation which applies the squeeze. United
States v. Women’s Sportswear Mfg, Ass’n., 336 U.S. 460, 464,
69 S.Ct. 714, 716 93 L.Ed. 805, 811 (1949). et seq.
Scott v. Moore, 640 F.2d 708 (1981) at 726
136 a Appendix V
Availability of injunctive remedy under 42 USC § 2000a
does not preclude recovery of monetary damages under 42 USC
1985(3). Fisher v. Shamburg, (1980, CA10 Kan) 624 F.2d 156
Exhaustion of administrative and state court remedies is
not prerequisite for jurisdiction.
Hazard v. Weinberger, (1974 SD NY) 382 F.Supp. 225,
affd without op (CA2 NY) 519 F.2d 1397
Even anti-injunction provisions of Norris-LaGuardia Act
did not deprive court of jurisdiction to enjoin deprivations
under 42 USC 1985(3).
Non-union workers were a protected class with First
Amendment right to freely associate protectable by court.
“The Ku Klux Klan Act was originally entitled, ‘An Act to
Enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and for Other Purposes.’ 17
Stat. 13 (1871). The guaranties afforded by the First Amend-
ment are protected by the due process clause of the Four-
teenth Amendment. E.g. Williams v. Rhodes, 393 U.S. 23, 30-
31, 98[sic] S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968); New York
Times v. Sullivan, 376 U.S. 254, 276-77, 84 S.Ct. 710, 724,11
L.Ed.2d 686, 704 (1964): Cantwell v. Connecticut, 310 U.S.
296, 303, 60 S.Ct. 900, 903, 84 L.Ed 1213, 1217 (1940):
DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81
L.Ed. 278, 283 (1937). Moreover, the right of free association
is closely aligned with the right of free speech and is similarly
protected by the First Amendment. E.g., Abood v. Detroit
Board of Education, 431 U.S. 209, 233, 97 S.Ct. 1782, 1798-
99, 52 L.Ed.2d 266, 279 (1972): Baird v. State Bar of Arizona,
401 U.S. 1, 6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639, 646 (1971):
NAACP v. Alabama ex rel. Patterson, 357 U:S. 449 462, 78
S.Ct. 1163, 1171-72, 2 L.Ed.2d 1488, 1499 (1958)”
Scott v. Moore, 640 F.2d 708 (1981) at 716
“Furthermore, extending section 1985(3) protection to in-
clude conspiracies motivated by nonracial class animus com-
ports favorably with the Supreme Court’s approach to other
Reconstruction civil rights statutes in recent years ‘to "accord
Appendix V 137 a
(them] a sweep as broad as [their] language." ’ " Griffin v.
Breckenridge, 403 U.S. 88 at 97; 91 S.Ct. 1790 at 1796; 29
L.Ed.2d 338 at 345 (1971)...
"(S]ection 1983 makes no specific reference to race, and a
wide variety of nonracial classes have sought and won relief
from discriminatory treatment under section 1983. See, e.g., Es-
telle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
(prisoners); Johnson v. American Credit Co., 581 F.2d 526 (5th
Cir. 1978) (debtors attacking state pre-judgment attachment
procedure); Morris v. Michigan State Bd. of Education, 472 F.2d
1207 (6th Cir. 1973) (sex). Since section 1985(3), like section
1983, is not cast in racial terms, consistency demands that sec-
tion 1985(3) also be read to protect nonracial classes."
Scott v. Moore, 640 F.2d 708 (1981) at 719
Petitioner respectfully points out that Means {and Hare_
Krishna case cited in appellant’s separate Brief) also clearly
show that court below was in error to dismiss because plain-
tiffs did not allege racial bias.
"However, the congressional debates evince a hearty re-
gard for persons who are victimized because of their political
beliefs and associations. {Emphasis on "political" supplied by
appellant.} Today’s Ku Klux Klan proclaims itself to be a rac-
ist organization. But in 1871 it was regarded primarily as a
political one ... Senator John Sherman of Ohio voiced this con-
cern after he read aloud from a copy of the Klan’s secret oath,
‘showing that here is a political organization, with political
ends, political aims ...’ Cong. Globe, 42d Cong., 1st Sess. 153
(1871). The Klan’s political objective formed a recurrent
theme in the Senate debates."
Scott v. Moore, 640 F.2d 708 (1981) at 721
"{All of the plaintiffs and defendants were American In-
dians and members of the same tribe, the Oglala Sioux.} In
interpreting this class-based discrimination test the Fifth
Circuit has said:
‘There need not necessarily be an organizational struc-
ture of adherents, but there must exist an identifiable body
with which the particular plaintiff associated himself by some
affirmative act. It need not be an oath of fealty; it need not be
138 a Appendix VY
an initiation rite; but at least it must have an intellectual
nexus which has somehow been communicated to, among and
by members of the group.’
Westberry v. Gilman Paper Co., 507 F.2d 206,215 (5th Cir.
1975) ... in our opinion, the reasoning above quoted was and is
valid in the light of Griffin. The group of plaintiffs in this case,
by their affirmative acts of supporting plaintiff (by petitions,
votes, etc.) ... were a class against whom ... the defendants dis-
criminated against because of their class membership. This
brings their complaint within the ambit of 42 U.S.C. § 1985(3).
Cameron v. Brock, 473 F.2d 606, 610 (6th Cir. 1973).
Means v. Wilson, 522 F.2d 833 at 840 (8th Cir. 1975) citing:
"However, courts have also granted protection to classes
{in addition to women, Jews, and religious bodies} whose
members are discriminated against because of their political
beliefs or their associations. See, e.g., Means v. Wilson, 522
F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct.
1436, 47 L.Ed.2d 364 (1976) (supporters of a particular politi-
cal candidate); Gleason v. City of Louisville, 518 F.2d 899 (6th
Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258
(1975) (political demonstrators); Smith v. Cherry, 489 F.2d
1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct.
2607, 41 L.Ed.2d 214 (1974) (voters for a sham political can-
didate); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)(sup-
porters of incumbent sheriff); Action v. Gannon, 450 F.2d
1227 (8th Cir. 1971)(worshippers at a predominantly white
Catholic church disrupted by black civil rights protestors).
Scott v. Moore, 640 F.2d 708 (1981) at 723
CONCLUSION & REMEDY
Therefore, from all of the foregoing and the points and
authorities in separate Brief re DeYoung, Plaintiff has present-
ed a case, that if proven, is a cause of action. The order of the
district court dismissing the pleadings with prejudice should be
reversed. Plaintiff should be granted sufficient time and oppor-
tunity to amend the complaint and to proceed with discovery.
It is a fact, not a conclusion, that AETN defendants
denied plaintiff equal enforcement of the laws in violation of
Appendix V 139 a
the Constitution and law, under color of law, and abridged
and trespassed against First Amendment secured nights.
It is a fact, not a conclusion, that KHOG defendants cen-
sored plaintiffs ads in violation of the Constitution and law,
under color of law, and discriminated against him and the
classes he represents.
It is a fact, not a conclusion, that other unnamed defen-
dants to control the outcome of a run-off, selectively closed
90% of the polling places in the 72 counties petitioner had
carried in the preferential primary in 1990, in violation of the
Constitution and law, under color of law, and discriminated
against him and the classes he represents.
It is a fact, not a conclusion, that all defendants acted
out of "class-based, invidiously discriminatory animus"
against plaintiff, his positions and expressions, and the clas-
ses and ideas, he represents.
Wherefore, Plaintiff/appellant respectfully moves this
honorable Court to reverse and void the December 16, 1992,
order of the district court dismissing complaint with prejud-
ice, and such appropriate orders and remedies that will effec-
tually preserve plaintiffs rights.
Respectfully,
s/ Ralph P. Forbes
Ralph P. Forbes
In his own proper person,
Box 88
London, AR 72847
501/293-4641
AFFIDAVIT OF VERIFICATION OF FACT
State of Arkansas
SS County of Pope
140 a Appendix V
I, Ralph P. Forbes, verify that the information contained
herein is true and correct to the best of my knowledge and
belief.
s/ Ralph P. Forbes
Ralph P. Forbes
Subscribed and affirmed before me this 16 Day of Feb, 1993.
My Commission expires June 30, 1996.
Karen P. Forbes
Notary Public
CERTIFICATE OF SERVICE
I, s/ Karen Forbes, verify that I have served true and cor-
rect copies of the foregoing to the Defendants and/or their
counsel at the following addresses believed by me to be their
place of business, this 16th Day of Feb, 1993, by U.S. mails.
Mr. Thomas S. Gay, #77053
Senior Assistant
Attorney General
For AETN State Defendants
200 Tower Building
323 Center St., Ste. 200
Little Rock, AR 72201
501/682-2007
Mr. Robert L. Jones, III, #69041
Attorney for KHBS-TV Defendants
JONES, GILBREATH, JACKSON & MOLL
401 N. 7th
P.O. Box 2023
Fort Smith, AR 72902-2023
501/782-7203
Appendix WwW l4la
APPENDIX W
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 93 -1031 -WA
RALPH P. FORBES AND THE PEOPLE
APPELLANTS, et al.,
v.
ARKANSAS EDUCATIONAL TELEVISION
COMMUNICATIONS NETWORK
FOUNDATION, et al.,
APPELLEES.
PLAINTIFF’S COMBINED REBUTTAL TO BRIEFS
OF AETN & KHOG DEFENDANTS
—
"INJUSTICE ANYWHERE
| IS A THREAT TO JUSTICE EVERYWHERE." ‘
| Dr. Martin Luther King, Jr. a4
x * *
A. Standard of Review
a
These pleadings should be regarded de novo as a whole
and liberally construed by this honorable court.
Plaintiff submits that an amended complaint will show a
long and continuing train of abuses and usurpations, pursuing
invariably the same object, that evinces a design, a systemic
pattern of deprivation of rights against plaintiff, and those
classes he represents, by defendants, who are united in their
purpose to deny Forbes and those he represents their substan-
tive and equal rights, including a wholesale systematic closing
of voting places that were required by law to be open.
142 a Appendix W
Furthermore, new evidence has come to plaintiffs atten-
tion that contradicts what KHOG News Director Len Pitcock
told Forbes on October 15th, 1992 (Page 7, J11., Motion for
Emergency TRO); and plaintiff alleges that the exclusion of
Forbes from the KHOG sponsored debate was not an innocent
oversight but a view point biased discrimination in violation of
Amendments I, V, [VX of the U.S. Constitution; §1983 and
$1985 of 42 USC; §315 of 47 USC; and numerous provisions of
the Constitution and laws of the State of Arkansas.
B. THERE IS A RIGHT OF ACTION FOR VIOLA-
TION OF RIGHTS, TO SECURE EQUAL PROTEC.
TIONS OF THE LAW, FOR DUE PROCESS OF LAW
AND A COMMON LAW RIGHT TO TRIAL BY JURY ...
THIS COURT HAS CONSTITUTIONALLY
MANDATED JURISDICTION
... Article III, Section II ... Article VI, Constitution of the
United States; ...28 USC $1331 and 28 USC § 1343.
This court’s Order of December 22, 1992, expressly de-
clared: "The underlying case is not moot. The complaint con-
tains a prayer for money damages."
Can the FCC award plaintiffs monetary damages?
* *K x
In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved ... according to the rules of the common law.
The Constitution of the United States, Amendment VII
This court’s Order of December 22, 1992, denied plaint-
iff's request for rehearing en banc because "it is no longer
possible for the grant or denial of preliminary injunctive relief
with respect to it to have any meaning." If this court itself can
provide no remedy for the wrongs other than compensation,
how can a regulatory commission that has jurisdiction only
over the defendants’ license to use certain radio frequencies
for commercial purposes, with no powers of redress, provide
any meaningful relief?
Appendix W 143 a
THE PEOPLES’ RIGHTS & BELIEFS ARE
PRICELESS PROPERTIES
"No person shall be ... deprived of life, liberty, or proper-
ty without due process of law."
The VIth Amendment to the Constitution
of the United States of America
A law or procedure is not "due process" when it’s in "con-
flict with the fundamental principles of liberty and justice
which lie at the base of all civil and political institutions."
Bute v. Illinois, 333 U.S. 640, 92 L.Ed 986, 68 S.Ct. 763
James Madison, The Principle Framer & Father of The
Constitution, Bill of Rights, and Federalist Papers, declared:
"[A] man has a property in his opinions and the free com-
munication of them ... In a word, as a man is said to have a
right to his property, he may be equally said to have a property
in his Rights. Where an excess of power prevails, property of no
sort is duly respected. No man is safe in his opinions, his person,
his faculties, or his possessions... Government is instituted to
protect property of every sort ... This being the end of govern-
ment ... Conscience is the most sacred of all property; other prop-
erty depending in part on positive law, the exercise of that being
a natural and inalienable right ... Madison, Property, 1792
Plaintiffs liberties of conscience and beliefs and the free
communication of them are his most priceless possessions
and personal property enjoying special protections of the
laws. The defendants have wilfully, wickedly and maliciously,
under color of regulation, deprived plaintiff and the people,
the classes he represents of this "most sacred of all property."
Moreover, if the defendants had not conspired to deny the
people their right to cast an informed ballot there is a good
chance that Plaintiff Forbes would have won a plurality in a
"free and equal," open election, which the people were denied.
x * *
All persons who contributed time or funds to plaintiff
Forbes’ campaign had a reasonable right to expect that defend-
ants would obey the laws so that [1] ihe viewpoints and expres-
144a Appendix W
sion they shared with Forbes would be fairly communicated
without prior restraint, censorship or repression; and [2] that
Forbes could campaign for these suppressed viewpoints on a
playing field in which the minimal rights protected by law would
be honored, not blatantly ravished; and [3] that their rights of
political expression would enjoy equal protections that are af-
forded to persons who hold other viewpoints.
* * *
$315 is only one of the many Constitutional provisions
‘and laws," violated by defendants, that secure “rights, privi-
leges or immunities" of which plaintiffs have been deprived
“under color of ... regulation" by the defendants, making them
liable to the plaintiffs "in at action at law ... for redress," pur-
suant to 42 USC $1983.
C-1. PLAINTIFFS’ GOD-GIVEN RIGHTS
ARE ENFORCEABLE BY THE COURTS OF LAW.
In addition to the points and authorities cited in plaintiffs
Appeal from "Order to Dismiss" showing that this Court
has jurisdiction ...47 USC 402 (a) and 28 USC 158 ... "Explicit-
ly Provide For Judicial Review of The FCC." to assure that the
Commission remains faithful to that “clear statutory purpose."
See Maer v. FCC, 735 F.2d 220 (1984) ft. note 4:
L. Jaffe, Judicial Control of Administrative Action 569-575 (1965)
This court has power to set aside as unlawful any action
that is unconstitutional, or "arbitrary, capricious, an abuse of
discretion, or ctherwise not in accordance with law."
Administrative Procedure Act, 5 USCA 553, 706(2)(a)
C-2. THE DEFENDANTS ARE WITHOUT EXCUSE:
EVEN THE FCC CONDEMNS THEM
On page 5 of their brief defendants refer to an FCC docu-
ment of "a few days before Mr. Forbes filed his amended com-
_ plaint." {No copy supplied by defendants.} "A few days before,"
on October 30, 1992, the FCC wrote a letter to Mr. Becker (DA
92-1503) in reference to a conflict over his desire to show a
video showing an actual abortion procedure. The conflict in
Appendix W 145 a
that instance arose out of the fact that the Becker video shows
female genitalia, and may come under the FCC’s indecency
definition of sexual organs under certain conditions.
This particular (Becker) video and controversy have ab-
solutely nothing whatsoever to do with the (Bailey) footage
used by Forbes which shows no sexual organs and had been
previously approved, over and over again by the FCC.
Defendants either don’t understand the factual issues, or
they have misled the court re the Becker case which they pur-
port "permits" the defendants’ censorship, because this Oc-
tober 30th letter specifically prohibited the defendants to
censor or "channel" Forbes’ ad.
See footnote-l of DA 92-1503 {Plaintiffs Exhibit #20}
which says in pertinent parts:
"... The Bureau concluded that the advertisement
was not indecent and that licensees therefore could
NOT "channel" the ad to the indecency safe harbor
without running afoul of sections 312(a) (7) and 315 of
the Communications Act... {Emphasis supplied.}
* *K *
Defendants claim justification for deprivation of plaint-
iffs’ rights under color of FCC regulation; but defendants’ ac-
tions are are all in breach of and contrary to the very FCC
rules which they pervert into illicit monstrosities. These dev-
iant dictates are the exact opposite of the clear and plain
meaning of the letter and spirit of the laws they subvert and
displace. This is totally subversive of congressional intent and
constitutionality. The defendants shamelessly attempt to use
these convoluted nullities as a fig leaf to try to hide their
transgressions from the eyes of justice.
C-3. THE FCC IS INCOMPETENT
DE JURE & DE FACTO TO REDRESS INJURIES
The defendants are attempting to mislead the controver-
sy away from the basic fact that plaintiffs have suffered great
irreparable injury as a direct result of their violation of ex-
press, fundamental rights under color of law by the defen-
dants. This court must not be snared into straining at a gnat
146 a Appendix W
while swallowing camels cooked up by the specious and in-
sidious distortion of the case by the defendants.
The mere claim by defendants that "there is no private
right of action" for violation of 47 USC $315, prima facie dem-
onstrates, establishes and proves that:
THE FCC SCHEME Is Not An Adequate Remedy At Lau;
And therefore, forcing an injured party to surrender
basic rights to a non-judicial, extra-constitutional commission
that has no lawful jurisdiction, no powers to redress nor com-
pensate, no true due process, no motivation or inclination, nor
history or record of providing justice and indemnification, is
not a lawful substitute for the right to the day in court, to
which an injured party is entitled to by right.
Petitioner Forbes does not waive, surrender or forsake
his priceless birthright, nor the common law birthrights of
we, the people, for any mess of pottage, particularly the
fraudulent FCC scheme.
D. PLAINTIFF EXHAUSTED
ADMINISTRATIVE REMEDIES
Petitioner asseverates that on November 2, 1992, he wrote
and mailed a letter* to Mr. Milton Gross at the FCC complain-
ing about the defendants’ violation of 47 USC §315 and the
FCC’s own findings. To this date, your petitioner has heard not
one word from the FCC in response to this serious allegation. ...
All Laws Which Are Repugnant To The Constitu-
tion Are Null And Void. (Chief Justice MARSHALL}
Marbury v. Madison, 1 Cranch 137, 174, 176 (1803)
Two centuries before the landmark Marbury decision,
Lord Coke in Dr. Bonham’s case (1610) declared: "[T]hat
when Act of Parliament is against common right and reason,
or repugnant, or impossible to be performed, the common law
will control it, and adjudge such Act to be void."
The language of the Constitution cannot be interpreted
safely, except where reference to Common Law (as it was in un-
derstood in Britain is made)... when the instrument was framed
and adopted. The statesmen and lawyers of the convention who
Appendix W liva
submitted it to the ratification of the thirteen states, were born
and brought up in the atmosphere of the Common Law and
thought and spoke in its vocabulary ... when they came to put
their conclusions into the form of fundamental law in a compact
draft, they expressed them in terms of Common Law, confident
that they could be shortly and easily understood.
Ex Parte Grossman, 267 U.S. 87, 108
All laws should receive a sensible construction. General
terms should not be so limited in their application as to lead
to injustice, oppression or an absurd consequence.
United States v. Kirby, 7 Wall 482
It is demonstrably not true that there exists anything
remotely resembling an "effective, comprehensive administra-
tive scheme" to protect a candidate’s rights to equal access and
the public’s rights to be informed. JF it existed this case would
never have come to court. Plaintiffs rights and the people’s
rights would not have been violated. Plaintiff did not want to be
forced to appeal to the courts, at great personal costs in time,
energy and money against the legal powers of the state and
powerful, legal firms that specialize in protecting powerful inter-
ests who act as if they are above the law, for enforcement of his
most fundamental rights. Plaintiff did everything reasonable
and lawful within his power to secure his rights. There may be
more than the usual animosity and prejudice against plaintiff,
but the FCC "scheme" fails to protect everyone’s rights "equally"
in what can only be described as "equal opportunity tyranny." ...
Where Rights secured by the Constitution are involved
there can be no rule making or legislation that would abrog-
ate them. Miranda v. Arizona, 384 U.S. 436 at 491
"For a government official to mouth in a ritualistic way"
(U.S. v. Tarlowski, 305 F.Supp. 112} certain Rights, while in ef-
fect reversing the meaning of the words used, he gravely trans-
gresses. The FCC scheme purports to protect a candidate’s
rights to equal access and opportunity while in effect it foreclos-
es any possibility of securing these rights. It is sham to give the
appearance of "due process," that inexorably deprives the candi-
date and the people their rights all under color of "due process."
PRE TR EA EE FRESE Gy RAE EN RRR CD, OPO HNN THe fern
ee ee ee
148 a Appendix W
However, even IF it were true that plaintiff has not yet
“exhausted” his pre-judicial remedies; to force him to first
proceed to “exhaust his administrative remedies" would be a
mere exercise in futility. Even if the FCC were to rule in his
favor at this late date, the FCC is even more powerless than
this court to grant any “meaningful relief;" Therefore, if
waiting for a "final" refusal by the FCC were a requisite for
plaintiff to seek redress in the courts of the land, this action
should not be dismissed "with prejudice" in order to allow
plaintiff to go through the administrative motions and then
pursue his cause through the courts of law.
* * *
EQUAL TIME AND THE PUBLIC INTEREST
"From the very beginning of broadcasting in this country
Congress has been aware of the potential of the new media to
influence public opinion, particularly in the political forum.
To say that time has confirmed that judgement is to under-
state the obvious. To protect political candidates, local and
national, from the danger of partisan use of the media, as
well as to protect the constitutional principle of electoral
equality, congress inserted the equal time provision in its
first major piece of legislation relating to broadcasting and it
has remained the law to this day."
Chisholm v. FCC, 538 F.2d 349 (1976) 367, from minority
opinion by the Honorable J. Skelly WRIGHT.
The case of Office of Com. of United Ch. of Christ v. FCC,
707 F.2d 1413 (1983) which included the following parties:
Office of Communication of the United Church of Christ.
FCC, CBS, National Association of Broadcasters, Radio Sta-
tion Licensees, ABC, NRBA, MBS, Black Citizens for Fair
Media, ACT, NOW, NAACP, Episcopal Church, Catholic
Church, etc. yields the following points:
1. Courts accord only limited deference to an agency’s in-
terpretation of its own governing statute; to do otherwise
would risk diluting the judiciary’s power to stand guard
against bureaucratic excesses by ensuring that administra-
tive agencies remain within bounds of their delegated author-
ity. (West Key 219[1])
Appendix W 149 a
2. It is the quintessential function of the reviewing court
to ... strike down those agency actions that transverse the
limits of statutory authority. (West Key 763)
3. ... courts remain the final authorities on issues of
statutory construction and are not obliged to stand aside and
rubber-stamp their affirmance of administrative decisions
that they deem inconsistent with statutory mandate or that
frustrate the congressional policy underlying a statute.
4....abrupt shifts in policy constitute "danger signals"
that the Commission may be acting inconsistently with its
statutory mandate... (West Key 14)
The Commission Has Ruled "Studio Debates" Be- |
tween Candidates And "Debate-Type" Format Is Pre-
cluded From Classification As A Bona Fide News Event
And Therefore Do Not Exempt Licensee From Affording
Equal Time Under 47 USC 315. 35 ALR Fed 82 at 866
It is well defined that we require an agency to follow its
own prior rulings and regulations. Service v. Dulles, (1954)
354 U.S. 363, 372, 77 S.Ct. 499, 98 L.Ed 681
The FCC was doing its job as authorized by Congress,
until it bowed to the power of the licensees it was created to
regulate and reversed its long standing enforcement of equal
time, fairness, etc. And it is under color of these perversions
that the defendants have deprived plaintiffs of their nights.
The common theme throughout the line of cases descending
from Red Lion is the judicial intent to carefully craft a balance
between all of the conflicting interests. This delicate balance was
predicated upon [1] the assurance that the FCC would protect
the paramount right of the people to be informed by enforcing
§312 and $315 of the Act to prevent censorship, suppression, un-
lawful discrimination; and [2] the Fairness Doctrine which may
be likened to a guy line which prevents a station’s antenna
tower from toppling to disaster. The FCC unilaterally slashed
both of these tether lines that anchored the courts’ "carefully
crafted, delicate balancing act" and sent it crashing to destruc-
150 a Appendix W
tion. Thus, the FCC has de facto overturned every restriction
against full, equal and fair access to the FCC regulated media. ...
The inescapable conclusion is that the FCC lied to the
courts and exceeded the bounds of statutory authority by
reversing its own long standing positions and promulgating
regulations that contravene congressional intent and collides
with the Constitution of the United States, Articles I, II and
III of the Constitution, which delegates and reserves the sep-
arate legislative, executive and judicial powers to the three
respective branches of government and transgresses against
the First, Fifth and Fourteenth Amendments.
"Those Then, Who Controvert This Principle, That
The Constitution Is To Be Considered In Court As A
Paramount Law, Are Reduced To The Necessity Of
Maintaining That Courts Must Close Their Eyes On
The Constitution And See Only The Law.
"THIS DOCTRINE WOULD SUBVERT THE VERY
FOUNDATION OF ALL WRITTEN CONSTITUTIONS."
Marbury v. Madison, 5 U.S. 137 at 176,
1 Cranch 37, 163, 2 L.Ed. 60 (1803)
Wherefore, Plaintiff/appellant respectfully moves this
honorable Court to reverse and void the December 16, 1992,
order of the district court dismissing complaint with preju-
dice, and such appropriate orders and remedies that will ef-
fectually preserve plaintiffs rights.
Respectfully,
s/ Ralph P. Forbes
Ralph P. Forbes
In his own proper person,
Box 88
London, AR 72847
501/293-4641
Appendix W l5la
CERTIFICATE OF SERVICE
I, Ralph P. Forbes, verify that I have served true and
correct copies of the foregoing to the Defendants and/or their
counsel at the following addresses believed by me to be their
place of business, this 1st Day of April, 1993, by U.S. mails.
Mr. Thomas S. Gay, #77053
Senior Assistant
Attorney General
For AETN State Defendants
200 Tower Building
323 Center St., Ste. 200
Little Rock, AR 72201
501/682-2007
Mr. Robert L. Jones, III, #69041
Attorney for KHBS-TV Defendants
JONES, GILBREATH, JACKSON & MOLL
401 N. 7th
P.O. Box 2023
Fort Smith, AR 72902-2023
501/782-7203
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.