Farmers Ed. & Co-op. Union of America, North Dakota Division v. WDAY, Inc.

• Decision Date: 03 April 1958
• Docket Number: No. 7710,7710
• Citation: 89 N.W.2d 102
• Court: North Dakota Supreme Court
• Parties: FARMERS EDUCATIONAL & COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION, a corporation, Plaintiff and Appellant, v. WDAY, Inc., a corporation, Defendant and Respondent.

Page 102

89 N.W.2d 102

FARMERS EDUCATIONAL & COOPERATIVE UNION OF AMERICA, NORTH

DAKOTA DIVISION, a corporation, Plaintiff and Appellant, v. WDAY, Inc., a corporation, Defendant and Respondent.

No. 7710.

Supreme Court of North Dakota.

April 3, 1958.

Syllabus by the Court

1. Under Federal Communications Act of 1934, Title 47 U.S.C.A., Section 301, Telegraphs, Telephones and Radio-telegraphs, complete regulatory power and control over channels of interstate radio and television communication are vested in the United States exclusive of State action.

2. The inhibition against censorship imposed on broadcasting stations by Section 315, Title 47 U.S.C.A., grants immunity to such stations from liability for defamatory statements made by candidates where such statements are germane to the political issues discussed by such condidates.

3. For reasons stated in the opinion it is held that Section 315, Title 47 U.S.C.A., does not violate the Fifth and Fourteenth Amendments to the Constitution of the United States.

Quentin N. Burdick, Fargo, for appellant.

Bangert & Bangert, Fargo, for respondent.

Douglas A. Anello, Walter R. Powell, Jr., Walter J. Murphy, Jr., Washington, D. C., amici curiae.

SATHRE, Judge.

The plaintiff is a corporation duly organized and existing under the laws of the State of North Dakota, with a principal office and place of business at Jamestown, North Dakota.

The defendant, WDAY, Inc., is a corporation duly organized and existing under and by virtue of the laws of the State of North Dakota with its office and principal place of business located at Fargo, North Dakota. It is engaged in radio and television broadcasting from its studios at Fargo, North Dakota, under license duly issued by the Federal Communications Commission.

At the general election of North Dakota in 1956 Milton R. Young, Quentin Burdick, and A. C. Townley were duly qualified candidates for the office of United States senator.

Some time prior to October 29, 1956, two of said candidates for the office of U. S. senator, Milton R. Young and Quentin Burdick, made arrangements with the defendant WDAY to use and did use its facilities and equipment for the photographing and recording of political speeches related to the respective candidates which photographic film and recordings through conventional television processes were broadcast by WDAY, the defendant.

Thereafter Townley the third candidate for U. S. Senator from North Dakota requested the same opportunity to use the broadcasting facilities and equipment of the defendant WDAY as had been accorded Milton R. Young and Quentin Burdick and presented to the defendant WDAY a script of the broadcast which he proposed to make over such facilities. WDAY notified Townley that it believed certain statements in the proposed script were false and that if such statements were, in fact false, they were libelous and that it would broadcast the proposed script only if Townley demanded that it be broadcast under the provisions of Section 315 of the Federal Communication Act, the same being Section 315 U.S.Code Annotated, Title 47.

Townley made the demand under said Section 315 and the script was broadcasted through the television and radio equipment of the defendant WDAY. Among other things the script contained the following statements:

'The Farmers Union program fully carried out as planned, not as it is planned by farmer members, but as it is planned by the Farmers Union dictators, would establish a Communist Farmers Union Soviet right here in North Dakota.'

'Both men take orders from Communist controlled Democrat Farmers Union and now this amazing fact--Communist infiltration and power has gone so far in North Dakota that the Democratic Party supports 100% the Democrat Farmers Union candidate and the Republican Party supports 90% the Democratic Farmers Union candidate. The Communist can't lose unless the Americans wake up and wake up fast.'

'Mr. Republican farmer, Republican banker, Republican businessman, do you vote and work Republican with Eisenhower for the Republican farm program and against the Farmers Union Soviet or do you now still walk hand in hand with communist Farmers Union dictators.'

Thereafter plaintiff brought this action against the defendants claiming that the contents of the Townley script was libelous per se and that the plaintiff thereby sustained special as well as general damages by reason of the broadcast of said script.

The complaint alleges that on the 29th day of October 1956, in the evening of said day, the defendants intentionally, wilfully, maliciously, knowingly and wrongfully published, reproduced and uttered the said libelous and defamatory statements over the television and broadcasting equipment and facilities of the defendant WDAY through channel 6, at Fargo North Dakota; that the statements so published and broadcasted by the defendants were directed to the plaintiff, and were deliberately designed to and did convey to the thousands of listeners and viewers of the said false and defamatory matter, and visual image of the defendant A. C. Townley that the person or legal entity to whom said statements referred was the plaintiff, and did convey the impression to thousands of listeners and viewers that plaintiff was unpatriotic, guilty of treasonable conduct, violated the constitution and law of the land, and was engaged in illegal and immoral activities, and held the plaintiff up to ridicule, contempt and obloquy, and caused plaintiff to be shunned and injured in its occupation, and said statements so broadcasted were libel and slander per se; that plaintiff has suffered and will suffer special damages on account of loss of membership dues and contributions in the sum of $50,000 and general damages in the sum of $50,000. The defendant A. C. Townley answered admitting making the broadcast complained of, but denied that same constituted libel and slander as against the plaintiff.

The defendant WDAY answered separately and admitted that the Townley script was broadcast through its television and broadcasting facilities; but alleged as a first defense that it was absolved of any liability for any damages under the provisions of Section 14-0209, 1953 Supp. NDRC 1943, which Section is as follows:

'The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee or operator, or agent or employee thereof.'

As a second defense it alleged that under the provisions of Section 315 of the Communications Act of 1934, U.S.Code Annotated Chapter 47, it had no power of censorship; that under said statute it was its mandatory duty to publish the script complained of, and that if it should fail to comply with said statute the same would be grounds for the Federal Communication Commission to penalize the defendant by refusing to renew its license; that by reason of the premises and said Section 315 and the regulations thereunder promulgated by the Federal Communication Commission, the defendant was without fault, and entitled to a dismissal of the action. Said Section 315 is as follows:

'If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate.'

The plaintiff demurred to the first defense on the grounds that it did not state facts sufficient to constitute a defense, and that the said Section 14-0209 NDRC 1943, 1953 Supp. is unconstitutional, invalid and void in that it violates Sections 9 and 22 of the Constitution of the State of North Dakota.

Plaintiff demurred to the second defense on the grounds that if said Section 315 of the Communications Act is applicable, it does not grant immunity to the defendant WDAY, Inc., from actions for defamation, and if construed as granting immunity, said Act would be unconstitutional and void and in violation of the Fourteenth Amendment to the Constitution of the United States and would contravene the due process clause of said Amendment, and deprive plaintiff of a substantial right to protect its property, including its reputation; that if said Section 315 is applicable, it would be void and unconstitutional under the Fifth Amendment to the Constitution of the United States, and deprive plaintiff of liberty and property and a substantive right without due process of law; and that the answer does not state facts sufficient to constitute a defense.

On the issues thus framed the matter came on for hearing, pursuant to agreement by the parties, in the district court of the first judicial district, at Fargo, North Dakota, before the Honorable John C. Pollock, one of the judges of said district court. After such hearing the court made its order sustaining plaintiff's demurrer to the first defense of the defendant WDAY, but overruled the demurrer to the second defense.

No appearance was made for or on behalf of the defendant A. C. Townley.

Neither the plaintiff nor the defendant elected to plead further. The defendant WDAY, Inc., moved for judgment in its favor for dismissal of the action. The motion was granted and the court made findings of fact, conclusions of law, and ordered judgment in favor of the defendant WDAY for dismissal of the action. Judgment was entered accordingly. The plaintiff appealed from the judgment and demanded a trial de novo in this court.

In its order sustaining the demurrer to the first defense...