Cook v. Advertiser Company

• Decision Date: 21 March 1972
• Docket Number: No. 71-1749.,71-1749.
• Citation: 458 F.2d 1119
• Parties: Samuel G. COOK et al., Plaintiffs-Appellants, v. The ADVERTISER COMPANY, Inc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 1119 (1972)

Samuel G. COOK et al., Plaintiffs-Appellants, v. The ADVERTISER COMPANY, Inc., et al., Defendants-Appellees.

No. 71-1749.

United States Court of Appeals, Fifth Circuit.

March 21, 1972.

J. J. Levin, Jr., Morris S. Dees, Jr., Levin & Dees, Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., for plaintiffs-appellants.

Nathaniel R. Jones, Gen. Counsel, William D. Wells, Asst. Counsel, James Meyerson, Atty., N.A.A.C.P., Special Contribution Fund, New York City (for amicus curiae N.A.A.C.P.).

Arthur B. Hanson, W. Frank Stickle, Jr., Ralph N. Albright, Jr., Washington, D. C., for amicus curiae The American Newspaper Publishers Assn.; Hanson, O'Brien, Birney & Stickle, Washington, D. C., of counsel.

M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, Ala., of counsel, for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

May a Court exercise jurisdiction over the content and arrangement of the society pages of a newspaper? That is the real issue in this appeal. In a judgment dismissing the complaint, the District Court Johnson, Chief Judge held in the negative, Cook v. Advertiser Company, 323 F.Supp. 1212 (M.D., Ala., 1971). We affirm.

One of the class action plaintiffs, Samuel G. Cook, a Negro, alleged that on May 18, 1970 he tendered the photo and wedding announcement of his fiancee, Miss Sherrie Ann Martin, of the same race, to the society editor and to the publisher of The Montgomery Advertiser, the only newspaper of any substantial circulation in the area, with the request that the story appear on the society page and "not the black page". The proposed restrictions were rejected; the story and the picture were never published. The wedding occurred on June 12, 1970.

On June 15, 1970 Cook and seven others filed a class action against the newspaper and its publisher, alleging that:

"The Advertiser publishes a society section in its Sunday edition where it prints bridal announcements and wedding stories and pictures. Stories and pictures appearing in this society section are accepted only from white people. All stories and pictures submitted by whites from Montgomery County are published in this society section. The Advertiser refuses to accept and print wedding stories from Negroes to appear in the society section.

Wedding stories and pictures of Negro persons are accepted and printed outside the regular society section on a Negro news page."

It was charged that the denial of the publication on the regular society page is a badge of slavery prohibited by 42 U.S.C. § 1981. It was further alleged:

"Plaintiff Cook and his fiance suffered humiliation and embarrassment because their wedding announcement and picture failed to appear in the Advertiser as a direct result of Defendants\' refusal to contract emphasis by the Court with Plaintiff Cook and because they were singled out for unequal treatment due to their race. Plaintiff Cook claims twenty thousand dollars ($20,000.00) as punitive and compensatory damages for this violation of his rights and for the humiliation and mental suffering he underwent because of the Defendants\' illegal and discriminatory actions. Plaintiff Cook also claims attorneys\' fees, court cost and demands a jury trial on the damage aspect of his claim.

"Plaintiff Cook seeks to enjoin the Defendant from refusing to print the picture and story of his wedding on June 12, 1970 and seeks an order requiring Defendants to print said story in the Sunday society section within a reasonable time after June 12 to be meaningful."

The plaintiffs further prayed that the defendants be enjoined "from refusing to contract with Negro citizens on an equal basis for white citizens in respect to news stories concerning bridal announcements."

Miss Martin, the prospective bride, whose picture and story were in this manner rejected, did not join the litigation as a party plaintiff.

The Montgomery Advertiser filed a motion to dismiss. Among the grounds assigned were that to exercise jurisdiction over the defendants in this case or the granting of the relief sought by the plaintiffs "would be violative and contrary to the First Amendment of the Constitution of the United States and would constitute an abridgement of the freedom of the press."

The District Court rejected the 42 U. S.C., § 1981 argument of plaintiffs on the ground that the section does not reach private action. Thereafter, the Fifth Circuit decided Sanders v. Dobbs Houses, Inc., 1970, 431 F.2d 1097. In that case it was held, under 42 U.S.C., § 1981, that a Negro employee who was allegedly discharged solely because she was a Negro could state a claim against a private employer. Plaintiffs below then requested the District Court to reconsider its order of dismissal, citing Sanders. The District Court filed an additional memorandum opinion denying the motion for reconsideration, concluding:

"Assuming that the plaintiffs have a statutory right under Section 1981 to have their bridal announcements published and that the defendant newspaper has a constitutional right to a `free press\', this Court reaches the firm conclusion that said defendant\'s constitutional right to be free from judicial interference in the selection of announcements for publication far outweighs the Section 1981 right plaintiffs are attempting to assert. It is for this same reason that plaintiffs cannot prevail against defendants upon a First Amendment theory."

42 U.S.C. § 1981, provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ...".

Cook claims that the method pursued by the Montgomery Advertiser for the acquisition and use of material in its society page amounted to an implied contract upon presentation of the questionnaire and the picture, thus conferring § 1981 jurisdiction. The paper did distribute printed forms (or blanks) to be filled in and signed by those wishing to have an announcement appear on the society page. This form was entitled:

"The Montgomery Advertiser and Alabama Journal Society Department

Outline for Engagement Announcement."

The information requested was the name of the bride—bride elect; the names of her parents and grandparents, with addresses; the name of the bride-groom elect, with like information as in the case of the bride; schools and colleges attended or now attending, with the names of clubs, sororities, and fraternities to which the individual had belonged, where employed, and the date and place of wedding. The questionnaire had to be signed with the name, address, and telephone number of the person furnishing it, no doubt to insure its authenticity and to identify any who might file an erroneous report.

The Advertiser charged no fee for stories appearing on its society page and the parties furnished, at their expense, any picture which they desired to have published. The actual story was written from the information appearing on the questionnaire.

There was no statement on the questionnaire, or elsewhere, that the Advertiser agreed to prepare and publish a story on each and every questionnaire filed with it.

In its original opinion the District Court did not decide whether there was a contract but dismissed because even if there was a contract there was no state action. In the order denying the motion for reconsideration, filed March 11, 1971, the Court again omitted decision specifically as to whether Cook had an implied contract, stating:

"Assuming arguendo that Section 1981 prohibits discrimination in the type of contractual relationship in question, there is a more serious hurdle plaintiffs must clear in order to withstand defendants\' motion to dismiss in this case the First Amendment."

Accordingly it was upon First Amendment grounds that the District Court based its second dismissal of the complaint.

Courts must look first to their jurisdiction, even if the look is of their own initiative. Our analysis of the transactions between Cook and the Advertiser leads us to believe that they did not amount to a contract, implied or otherwise. It appears that the Advertiser generally wrote and published items on its society page, based on information furnished in questionnaires voluntarily filed by those who wanted an item published. There was never an agreement that every questionnaire, without exception, would result in a story on the society page. The newspaper received no pecuniary consideration from any person filing a questionnaire. There was no agreement to publish and there was no consideration received for any publication actually made. We have been cited no case which holds that such an arrangement constitutes a binding contract between the parties. Thus no § 1981 jurisdiction could...