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.

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