Hearst v. Black

• Decision Date: 09 November 1936
• Docket Number: No. 6808.,6808.
• Parties: HEARST v. BLACK et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

87 F.2d 68 (1936)

HEARST v. BLACK et al.

No. 6808.

United States Court of Appeals for the District of Columbia.

Argued October 12, 1936.

Decided November 9, 1936.

Elisha Hanson, of Washington, D. C., for appellant.

Crampton Harris, of Birmingham, Ala., for appellees.

Before ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ.

GRONER, J.

Appellant is engaged in the business of publishing daily newspapers and magazines. In March of this year be brought in the court below his bill to enjoin the Special Senate Committee and the Federal Communications Commission from copying and using telegraphic messages in the possession of the telegraph companies sent by him to his employees in the conduct of his business. The bill alleges that in the month of September, 1935, the Senate Committee under blanket subpœnas duces tecum demanded of the telegraph companies doing business in the City of Washington the delivery to it (the committee) of all communications — i. e., telegraph messages — transmitted through the offices of such companies during the period February 1, 1935, to September 1, 1935; that when the companies expressed reluctance to make delivery of the messages, the committee went to the commission and asked its assistance to compel the production of the communications desired by the committee; that thereafter the committee and the commission conspired together to deprive appellant of his constitutional rights and liberties under the First, Fourth, and Fifth Amendments to the Constitution of the United States, in that the commission by a formal resolution detailed a member of its staff to work with an examiner of the Senate Committee in an examination of the messages and records in the offices of the telegraph companies; that pursuant to this arrangement agents of the commission "made copies of or notes concerning thousands of telegrams" from or to sundry individuals, firms, or corporations, and turned the same over to the Senate Committee; that among the telegrams examined and copied were messages from appellant to his associates and employees and messages from his associates and employees to him which had no connection with the subject matter of the investigation — all of which were sent in the regular and orderly conduct of the business in which appellant was engaged; that the use of the messages will result in the disclosure of the contents to the committee and to the general public and will disclose to appellant's business competitors privileged and private information relating to his private business affairs and will result in irreparable injury to appellant.

The bill further alleges that the members of the Senate Committee are about to make further search in an effort to gather up additional messages which have passed between appellant and his associates and employees and that the commission is ready and willing to co-operate in the illegal seizure of such messages unless restrained by the court.

Appellees, who are the members of the Senate Committee, filed a special appearance through counsel and a motion to dismiss the bill of complaint for lack of jurisdiction. The commission neither answered the bill nor moved to dismiss, but filed what is called an "opposition" to the motion for preliminary injunction. This paper appears in the record and in it is a statement that the examination by the commission of the local telegraph offices had been completed prior to the filing of the bill and that no further investigation or examination was then planned or contemplated.

The District Court refused to grant the injunction pendente lite and for lack of jurisdiction dismissed the bill as to the Senate Committee, but took jurisdiction as to the commission; and the judge stated from the bench that the denial of the motion for preliminary injunction as against the commission was made solely on its disclaimer of any intention thereafter to make any further examination of the telegraphic messages of appellant or otherwise to change the then status of the case, and was without prejudice to renewal of the motion upon any evidence of further activities in the respects mentioned. Apparently it is agreed that thereafter the commission by formal resolution rescinded its original order for an investigation and examination of the messages in the telegraph offices. And we assume — as did the lower court — that the commission's activity in the respects complained of will not be repeated. But because of the importance of the question raised as to the Senate Committee, we granted a special appeal.

Section 1 of the Communications Act of 1934 (48 Stat. 1064 47 U.S.C.A. § 151) states the purpose of the act to be to regulate interstate and foreign commerce in communications by wire and radio so as to make available to the people of the United States an efficient nation-wide and world-wide wire and radio communication for the national defense. The act provides for the appointment by the President of a commission and provides (section 220 (c), 47 U.S.C.A. § 220(c) that the commission shall "at all times have access to and the right of inspection and examination of all accounts, records, and memoranda, including all documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by such carriers." And further, that the prohibition in section 605 (47 U.S.C.A. § 605) against disclosure of the contents of messages shall not apply to the provisions just above quoted.

This last provision we think means merely that the commission shall have complete freedom in the examination and inspection necessary in the discharge of its duty and that the prohibition (section 605) against disclosure of the contents of telegraph messages by telegraph companies shall not be so construed as to cripple or destroy the statutory right and duty of examination and inspection of records, etc., necessary in the enforcement of the act.

Section 605 (47 U.S.C.A. § 605) provides: "No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination," etc.

The Senate Committee was appointed pursuant to two resolutions of the Senate, the first July 11, 1935, and the second July 29, 1935. The committee was authorized to investigate "all lobbying activities and all efforts to influence, encourage, promote, or retard legislation, directly or indirectly, in connection with the so-called `holding company bill,' or any other matter or proposal affecting legislation"; to investigate also the financial structure of persons, companies, corporations, partnerships, or groups seeking to influence the passage or defeat of legislation; to investigate their political contributions and activities, and their efforts to control the sources and mediums of communication and information. The resolutions permit the committee to require by subpœna or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents as it deems advisable.

Appellant's bill does not challenge the power of the committee in any of the respects just mentioned, but rests on the proposition that the Communications Commission was without lawful authority to coerce the telegraph companies, over which it has supervisory control, to make the contents of appellant's telegrams available to the Senate Committee or any one else — and that the committee is now unlawfully in possession of the messages and therefore without legal right to retain, disclose, or in any manner use them. The judge of the lower court, as we assume from his statement from the bench, was of opinion that, though the court would have had jurisdiction to restrain the commission and its agents from doing an unlawful act, it ought not to grant the prayer for injunction because the things charged — whether lawful or unlawful — had been done before the filing of the bill, and because the commission had then disclaimed any purpose to give any further assistance to the committee to obtain private telegraph messages. As to the Senate Committee the...