CBS Inc. v. Young

• Citation: 522 F.2d 234
• Decision Date: 02 July 1975
• Docket Number: No. 75-1646,75-1646
• Parties: 1 Media L. Rep. 1024 CBS INC., Petitioner, v. The Honorable Don J. YOUNG, Judge, United States District Court, Northern District of Ohio, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 234

522 F.2d 234

1 Media L. Rep. 1024

CBS INC., Petitioner, v. The Honorable Don J. YOUNG, Judge, United States District Court, Northern District of Ohio, Respondent.

No. 75-1646.

United States Court of Appeals Sixth Circuit.

July 2, 1975.

Rehearing and Rehearing En Banc Denied Aug. 14, 1975.

James P. Garner, H. Stephen Madsen, Donald A. Burns, Baker, Hostetler & Patterson, Cleveland, Ohio, for petitioner.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Eleanor S. Applewhaite, New York City, John G. Mattimoe, Duane Stranahan, Jr., Donald F. Melhorn, Jr., Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, Clyde R. Ellis, ACLU of Ohio Foundation, Inc., Columbus, Ohio, Steven A. Sindell, Nelson G. Karl, David E. Engdahl, Cleveland, Ohio, Robert H. Olson, Jr., Columbus, Ohio, Burt J. Fulton, Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, Ohio, Charles E. Brown, Crabbe, Brown, Jones, Potts & Schmidt, R. Brooke Alloway, Topper, Alloway, Goodman, DeLeone & Duffey, Columbus, Robert W. Blakemore, Blakemore, Rosen, & Norris, Akron, Ohio Before MILLER, LIVELY and ENGEL, Circuit Judges.

E. Barrett Prettyman, Jr., Washington, D. C., Jack Landau, Reporters Committee for Freedom of the Press, Washington, D. C., for respondent.

PER CURIAM.

CBS Inc. has filed with this Court a petition for the writ of mandamus directed to the respondent, a duly appointed and acting United States District Court Judge for the Northern District of Ohio, to require him to vacate an order of May 6, 1975, entered in a civil action presently pending before him in Cleveland, Ohio, styled Krause v. Rhodes, bearing case # C70-544. The challenged order of May 6, 1975, reads:

For good cause appearing, it is

ORDERED that in addition to all counsel and Court personnel, all parties concerned with this litigation, whether plaintiffs or defendants, their relatives, close friends, and associates are hereby ORDERED to refrain from discussing in any manner whatsoever these cases with members of the news media or the public.

The civil action arose from an occurrence of May 4, 1970, at Kent State University, when members of the Ohio National Guard were called to the campus of the University because of a demonstration on the part of a large number of students protesting the invasion of Cambodia by American troops. At some point after the Guard arrived on the campus, a confrontation between students and Guard members occurred, resulting in some members of the Guard firing their weapons, thereby causing the deaths of four students and the wounding of a number of others. Numerous civil actions on account of personal injuries were instituted in the district court against the Governor of the State of Ohio, the former Adjutant General, his former Attorney General, the former President of Kent State University, and a number of individual members of the National Guard. Wrongful death actions on behalf of the slain students were also filed against the same defendants. All actions were consolidated for trial under the style of Krause v. Rhodes. Damages were sought in the consolidated actions aggregating $48,000,000.00.

CBS is a New York corporation, operating a network of approximately 209 independently owned and five CBS owned television stations located in 47 states and the District of Columbia, one of which is located in Cleveland, Ohio. It also operates a network of approximately 246 independently owned radio stations located in the continental United States, including an AM radio station in Cleveland, Ohio. It owns and operates seven AM and seven FM radio stations in the United States, and produces news and public affairs programming for the radio and television networks.

The validity of the order is challenged by CBS on numerous grounds, principally its alleged violation of the rights of petitioner guaranteed by the First Amendment to the Constitution of the United States.

Because of the nature of the case, the Court was of the opinion that the issues raised by the petition for mandamus should not be determined summarily or without the benefit of responses from the interested parties. Accordingly, this Court entered its order on June 11, 1975, permitting the respondent, as well as all parties to the civil litigation, to file their answers to the petition together with briefs in support of their respective positions. In addition, the Court set the case down for oral argument on June 20, 1975. The same order permitted petitioner and respondent, and any party to the civil action, to present testimony in open court in addition to pertinent exhibits and affidavits. In consequence, the Court has had the benefit of oral arguments and extensive briefs on behalf of the petitioner and the respondent, in addition to extensive briefs filed by the following as amici curiae: The Reporters Committee for Freedom of the Press, Messrs. Anthony Nattalli and Joseph Mosbrook, news reporters currently

assigned to continuous daily coverage of the trial, and Local 1, The Newspaper Guild, representing approximately 800 news reporters and employees of news organizations in the Cleveland, Ohio, area.

JURISDICTION

The petitioner invokes the jurisdiction of this Court to issue a writ of mandamus upon the All Writs Statute, 28 U.S.C. Sec. 1651. The respondent, on the other hand, challenges the jurisdiction of the Court to issue the writ in the context of the present case, arguing that no exceptional circumstances exist justifying the issuance by this Court of the extraordinary writ of mandamus.

We are of the opinion, however, that the circumstances presented are exceptional and that the Court has jurisdiction to issue the writ under the All Writs Statute. Jurisdiction, we feel, is fully sustained by our recent decision in United States v. United States District Court for the Eastern District of Michigan, 444 F.2d 651 (1971), Affd., 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), in which it was held that mandamus would lie to review an order of a United States District Judge which directed the United States to make full disclosure of certain conversations which had been monitored by the government, without judicial sanction, under the authority of the Omnibus Crime Bill. It was pointed out that mandamus was the proper remedy since the order was not appealable and the case was an extraordinary one, posing a basic issue under the Fourth Amendment. See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

The petitioner, being neither a party to the litigation nor specifically enjoined by the order from discussing the case, Cf. United States v. Schiavo, 504 F.2d 1 (3d Cir. 1974), Cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974), was not in position to seek a remedy by direct appeal to this Court. As we are nevertheless of the opinion, as set forth below, that the petitioner's First Amendment rights were impaired and curtailed by the order, it would be without remedy should we find that the writ of mandamus could not be invoked. We find that the case is an extraordinary one, involving a basic issue, and that our authority to review the order in question by mandamus is unassailable.

STANDING

The respondent argues that the petitioner lacks standing to apply for mandamus or to question the validity of the order. Although the petitioner was not made a specific target of the restrictive order enjoining discussions about the case, it was, in our view, nevertheless effectively cut off from any access whatever to important sources of information about the trial.

The doctrine of standing is well established and has been employed in many instances as a device to deny litigants access to the courts. The Supreme Court in Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), enunciated the requirements for a party to have standing. The first requirement, as the Court stated, is that the plaintiff must allege that the challenged action has caused him injury in fact, economic or otherwise. That petitioner has satisfied this prong of the test is clear from the petition and from the face of the order itself, as already pointed out. The second requirement as set forth in Data Processing is that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." This aspect of the Data Processing test is also satisfied here. This is true because the order of May 6, in denying to petitioner access to potential sources of information, at least arguably impairs rights guaranteed to the petitioner by the First Amendment. We are not persuaded by the argument that petitioner lacks standing because it is not a party to the civil litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it. This was recognized by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972), where the Court stated: "Without some protection for seeking out the news, freedom of the press could be eviscerated." News gathering thus qualifies for First Amendment protections. See Branzburg at 681 and 707, 92 S.Ct. 2646.

Thus, though CBS was not named in the order, Cf. Times Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974), nevertheless, as applied to CBS, this order affected its constitutionally guaranteed right as a member of the press to gather news.

It is axiomatic that the First Amendment guarantee of freedom of the press is for the benefit of all the people and not a device to give the press a favored status in society. In Grosjean v. American Press Co., 297 U.S. 233, 249, 56 S.Ct. 444, 80 L.Ed. 660 (1930), the Court quoted from 2 Cooley's Constitutional Limitations,...