WRMA Broadcasting Co., Inc. v. Hawthorne, Civ. A. No. 4042-N.
Decision Date | 18 October 1973 |
Docket Number | Civ. A. No. 4042-N. |
Citation | 365 F. Supp. 577 |
Parties | WRMA BROADCASTING CO., INC., a corporation, and Lee Lunsford, Plaintiffs, v. J. H. HAWTHORNE et al., Defendants. |
Court | U.S. District Court — Middle District of Alabama |
D. Coleman Yarbrough (Jones, Murray, Stewart & Yarbrough) and Thomas W. Thagard, Jr. (Smith, Bowman, Thagard, Crook & Culpepper), Montgomery, Ala., for plaintiffs.
Solomon S. Seay, Jr. (Gray, Seay & Langford), Montgomery, Ala., for defendants.
Plaintiffs allege that defendants are conspiring, in violation of 42 U.S.C. § 1985(3),1 to force the discharge of plaintiff Lunsford, white manager of radio station WRMA, for racial reasons and in violation of his rights under 42 U.S.C. § 1981.2 Plaintiffs also claim that defendants are acting in violation of the criminal laws of the State of Alabama, specifically Ala.Code tit. 14, §§ 54 and 57 (1958), and plaintiffs seek to have this Court take jurisdiction over this aspect of their claim pursuant to the pendent jurisdiction of this Court. Plaintiffs seek injunctive relief from these alleged wrongs in the form of a preliminary injunction. The parties have stipulated that plaintiffs' motion for a preliminary injunction shall be submitted upon the pleadings, the depositions filed in this cause, and the evidence presented during the hearing on plaintiffs' motion for a temporary restraining order.
Allen James, a co-owner of three downtown clothing stores, testified that Barnett said that "he did not want to set up the picket lines in front of anybody's store." Plaintiffs allege that these explicit threats by Hawthorne and Barnett, along with well-understood threats inferred from Barnett's past boycott experience, have caused numerous established Montgomery businesses to cancel their advertising with WRMA, causing irreparable harm to Lunsford and WRMA and interfering with plaintiff Lunsford's right to contract for employment irrespective of his race.
In order to prevail upon their motion for preliminary injunction, plaintiffs must show the existence of three elements: (1) a probable right to relief, (2) irreparable harm if injunctive relief is not granted, and (3) the fact that the possible harm to plaintiffs absent an injunction outweighs the harm to defendants if the injunction is granted. American Radio Ass'n v. Mobile Steamship Ass'n, Inc., 483 F.2d 1 (5th Cir. 1973).
In deciding whether plaintiffs have established a probable right to relief, it is necessary to determine whether a white plaintiff may sue under Section 1981 for a deprivation of rights which does not involve any state action. This Court has in the past taken the view that, owing to a peculiar and somewhat murky legislative history, an allegation of state action was necessary in a Section 1981 complaint by a black plaintiff. Cook v. Advertiser Company, Inc., 323 F.Supp. 1212 (M.D.Ala.1971), aff'd on other grounds, 458 F.2d 1119 (5th Cir. 1972). Although there is some authority for the proposition that state action is required in a Section 1981 claim,4 it has now become clear that this circuit has adopted the theory that state action is not a requisite element of a Section 1981 claim by a black plaintiff. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1016 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1099 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971). Furthermore, it appears that the United States Supreme Court is of the opinion that an allegation of state action is unnecessary in a Section 1981 claim, Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 439, 93 S.Ct. 1090, 35 L.Ed.2d 403 n. 11 (1973), and the majority of courts in other jurisdictions have similarly held.5 The law is, therefore, clear that state action is not a requirement of proof in a Section 1981 claim by a black plaintiff. The rationale for not requiring state action in Section 1981 cases is that Section 1981 was passed pursuant to the Thirteenth Amendment6 and is derived from the 1866 Civil Rights Act.7See, e. g., Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 439, 93 S.Ct. 1090, 35 L.Ed.2d 403 n. 11 (U.S. Feb. 27, 1973); Waters v. Wisconsin Steel Works of Int'l Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U. S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). The derivation of Section 1981 from the 1866 Civil Rights Act, and not the 1870 Civil Rights Act8 which was passed pursuant to the Fourteenth Amendment, indicates that Congress in enacting Section 1981 could validly have intended it to apply to purely private acts. Congress had power to reach such private acts through its grant of power under the enabling clause of the Thirteenth Amendment, empowering Congress "to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439, 88 S.Ct. 2186, 2203, 20 L. Ed.2d 1189 (1968). One of the "badges and incidents of slavery," certainly, was a lack of equality between the races of power to contract. Accordingly, black plaintiffs may sue under Section 1981 without proof of state action.
Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, 899 (E.D.Mo.1969). "It is clear that Section 1981 applies to racial discrimination against all persons regardless of race." Gannon v. Action, 303 F.Supp. 1240, 1244 (E.D.Mo.1969), aff'd on other grounds, 450 F.2d 1227 (8th Cir. 1971) (en banc) ( ). If there were any doubts...
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