Evans v. AMERICAN FEDERATION OF TELEVISION & RADIO ART., 71 Civ. 3920

• Decision Date: 23 January 1973
• Docket Number: No. 71 Civ. 3920,71 Civ. 146.,71 Civ. 3920
• Citation: 354 F. Supp. 823
• Parties: M. Stanton EVANS, Plaintiff, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant. William F. BUCKLEY, Jr. and National Review, Inc., Plaintiffs, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant.
• Court: U.S. District Court — Southern District of New York

354 F. Supp. 823

M. Stanton EVANS, Plaintiff, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant.

William F. BUCKLEY, Jr. and National Review, Inc., Plaintiffs, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant.

Nos. 71 Civ. 3920, 71 Civ. 146.

United States District Court, S. D. New York.

January 23, 1973.

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Baker, Nelson & Williams, New York City, by C. Dickerman Williams, New York City, for plaintiffs. Edith Hakola, Washington, D. C., of counsel.

Becker & London, New York City, by Edward Schlesinger and Mortimer Becker, New York City, for defendants.

OPINION

BRIEANT, District Judge.

These causes have been consolidated at the instance of plaintiffs by an order of this Court (Pierce, J.) made December 3, 1971.

By order to show cause dated March 3, 1972, issued by Judge Tenney, plaintiffs in each action moved for summary judgment to be entered under Rule 56, F.R.Civ.P., "declaring void, illegal and unconstitutional § 8(a)(3) 29 U.S.C. § 158(a)(3) of the National Labor Relations Act, insofar as that statute may be deemed to authorize defendant's agreements with networks, broadcasters, stations and other employers in the television and radio industry which require or may purport to require plaintiffs . . . to continue to be members of the defendant . . . pay dues . . . and comply with defendant's regulations and orders as a condition of the production or broadcasting certain programs known as `Firing Line', `Spectrum' and/or other programs on which plaintiffs . . . may appear, and further, declaring that plaintiffs Buckley and National Review, Inc. may continue to make and sell the package show Firing Line and that plaintiffs . . . may continue to appear on television and radio as they see fit, irrespective of continued membership in defendant, the payment by them of . . . dues and their compliance with defendant's regulations and orders, all without harassment or interference by defendant . . . and further enjoining defendant . . . from threatening any network, broadcaster, station or other employer in the television and radio industry with any proposed action or otherwise or taking any action by reason of its employment of or intended employment of plaintiffs . . . on any television or radio show, or its use, or intended use, of a package show in which plaintiffs . . . appear, and further enjoining defendant . . . from threatening to take or taking punitive action of any kind whatever against plaintiffs should plaintiffs Buckley and Evans withdraw from membership in defendant . . . or fail to pay dues . . . or comply with any order of defendant . . .."

By notice of motion dated May 3, 1972, defendant also moved for summary judgment dismissing the complaints and the consolidated action for "lack of jurisdiction, and failure to state a claim against defendant upon which relief can be granted."

Both causes have been at issue for some time. Adequate discovery appears to have been conducted by deposition and interrogatories. With a reservation, not considered significant for purposes of this motion,¹ all parties concede that there are no contested material issues of fact. The Court finds that no contested issues of fact prevent disposition of these motions. Both plaintiffs seek to enforce rights said to be protected pursuant to the First, Fifth and Ninth Amendments to the Constitution of the United States, and more specifically, First Amendment rights.²

The Parties

M. Stanton Evans, plaintiff in 71 Civ. 3920, is a paid radio commentator, or analyst, of news, current events, politics, social, economic, religious, moral and ethical problems—all of the great issues which divide us.³ Pursuant to written contract with CBS News, a division of the Columbia Broadcasting System which owns and operates radio stations, and furnishes material which may be broadcast pursuant to license by other affiliated stations, Evans, referred to therein as "Artist", on his own responsibility, and not as a "staff employee", writes his own material and selects his own subject matter. He enjoys substantial freedom of expression. While CBS News personnel, in their discretion, may determine whether any program shall be broadcast, CBS may not, without Evans' prior consent, alter Evans' original creative work. Evans, pursuant to the contract, holds CBS harmless for damages and expenses including counsel fees, arising out of the use of any materials furnished by him or words spoken by him e. g. plagiarism or slander.

The viewpoint and position (or "bias") which Evans reflects is conservative. He alleges that he is ". . . generally considered a spokesman for the conservative point of view on politics and national and international affairs".

Broadcasting is neither his primary nor full-time occupation, which is that of editor of the Indianapolis (Ind.) News, a substantial daily newspaper. He is a prominent national figure, and is an author of books and essays, a lecturer and debater. It is this independent status, and his standing as an author and lecturer, which creates public interest in his opinions, which are not those of the producer, station or network.

William F. Buckley, Jr., plaintiff in 71 Civ. 146, is a public figure. He has been a candidate for Mayor of New York City and speaks regularly on current events, politics, social, economic and religious subjects. He appears with some frequency on television, and as a paid lecturer. He writes a syndicated newspaper column entitled "On The Right", published three times a week by over 320 newspapers, in which he writes as a commentator and analyst of news, current events, politics, social, economic, religious, moral and ethical problems. He is the principal participant of what he characterizes as a "TV Show" called "Firing Line",⁴ and appears often as a guest with or without pay on other television programs, particularly television panel discussions of public events and issues.

He has written magazine articles and books. It is difficult to state with certainty what his primary or full-time occupation is; however, he serves as editor of a magazine, "National Review", and, like Evans, is probably not engaged in broadcasting as his primary or full-time occupation.

Buckley too, is a conservative. He has submitted on the motion a description of his professional standing prepared by Professors Leonard W. Levy and Arthur Young, General Editors of the American Heritage series of books as a foreword to the book "Did You Ever See a Dream Walking?", an anthology of American conservative opinion of which Buckley was the editor. Professors Levy and Young write in relevant part:

"Mr. Buckley is the foremost expositor of rational, humanistic conservative thought in America today. He is a man for all conservative seasons: author, politician, TV star, popular lecturer and editor-in-chief of the nation's leading journal of conservative opinion, National Review. In every capacity he is an outstanding educator, though not an academician. Famed as a tough-minded adversary, an entertaining and brilliant conversationalist, and a scintillating stylist, he is also an enormously learned man and a serious thinker. His introduction to this book is written with his characteristic charm, wit, ego, trenchancy, and, of course, strong bias . . . Mr. Buckley is eclectic. . . . He flatly rejects the intolerant and rigid dogmatism of Ayn Rand, the extreme and unrealistic anti-statism of conservatives who verge on anarchism, and the apoplectic and reckless reactionarism (sic) of the John Birchers with their conspiracy theories. Mr. Buckley's conservatism shares nothing in common with the conservatism of Big Business or of the self-appointed super-patriots, bigots and xenophobes."

Plaintiff National Review, Inc., of which Buckley is President, and sole shareholder, is a co-producer of "Firing Line", together with RKO General, Inc., a broadcaster. "Firing Line" is a regular television program known in the television industry as a "package show" because it is produced and broadcast pursuant to contract. On about March 31, 1971, Southern Educational Communications Association ("SECA"), supplanted RKO General as to future Firing Line programs, under a new contract between National Review and SECA, pursuant to which Firing Line was to be produced for distribution to over 200 non-commercial TV stations, by SECA, whose performance was guaranteed by the Corporation for Public Broadcasting.

Production originally took place in New York, but later, by contract, production was effectuated in numerous places, and at various television studios or stations throughout the United States.

Defendant American Federation of Television and Radio Artists ("Aftra") is an unincorporated association organized under the laws of the State of New York and affiliated with the AFL-CIO. It is in essence a labor union, or collective bargaining agent, for artists engaged in the fields of radio and television. It has locals in New York and in many other places throughout the country where television and radio productions originate.

Facts

Aftra is, and for many years prior to 1967 was, a collective bargaining agent, and is a "labor organization" as defined by the National Labor Relations Act. 29 U.S.C. § 152(5).⁵ Wherever permitted by state law, Aftra has bargained for, and obtained, union shop conditions, with RKO General, Inc., Columbia Broadcasting System and many other television and radio producers, networks and broadcasters. These contracts incorporate by reference, as in the nature of a contract of adhesion, a so-called "Code of Fair Practice". Section 84 of Aftra's Code of Fair Practice for the television industry reads in relevant part as follows:

"84. Union Shop

Until and unless the union security provisions of the Labor Management Relations Act, 1947, as amended, are repealed or amended so as to permit a stricter union security clause the following

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