KVUE, Inc. v. Moore
| Decision Date | 18 July 1983 |
| Docket Number | No. 82-1192,82-1192 |
| Citation | 709 F.2d 922 |
| Parties | 9 Media L. Rep. 2334 KVUE, INC., Plaintiff-Appellant, and AUSTIN BROADCASTING CORP. and Central Texas Broadcasting Co., Inc., Intervenors-Appellants, v. Margaret MOORE, In Her Official Capacity as County Attorney for Travis County, Texas, Defendant-Appellee, and The State of Texas, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. James George, Jr., David H. Donaldson, Jr., Austin, Tex., for plaintiff-appellant.
Erwin G. Krasnow, Washington, D.C., amicus curiae for Nat. Ass'n of Broadcasters.
James W. Collins, James Rader, Asst. County Attys., Austin, Tex., for Moore.
Margaret S. McGloin, Asst. Atty. Gen., for the State of Tex.
Appeal from the United States District Court for the Western District of Texas.
Before RUBIN, GARZA, and WILLIAMS, Circuit Judges.
A television broadcaster challenges the constitutionality of a Texas statute prescribing the rates radio and television stations may charge political advertisers and requiring sponsors of such advertising to identify themselves. The district court found that the broadcaster had not been threatened with prosecution and dismissed the complaint for lack of standing to challenge the statute. We conclude that the broadcaster has suffered injury as a result of enactment of the statute and, therefore, presents us with a justiciable controversy.
On the merits, we conclude that the portion of the Texas statute setting the rates that may be charged for political advertising is unconstitutional because it conflicts directly with federal law and is, therefore, preempted. We conclude, however, that the sponsorship identification requirement is valid to the extent it applies to candidates for nonfederal office and campaigns that do not involve federal issues.
Article 14.09(B) of the Texas Election Code prohibits a radio or television station from charging a rate for political advertising that exceeds the lowest unit charge made by the station to other advertisers "for the same class, condition and amount of time." 1 This statute applies both to advertising in support of and in opposition to a particular candidate (candidate advertising) and to broadcasts for or against political issues (issue advertising). Article 14.09(A) prohibits the broadcast of either candidate or issue advertising that does not disclose the name and address either of the agent who contracted for the broadcast or of the person represented. 2 Violation of each section is a crime, punishable by sanction fixed by the statute. 3
KVUE-TV, Inc. (KVUE) sued the county attorney for Travis County seeking a declaratory judgment that both provisions violate the United States Constitution and an injunction preventing enforcement of the statutes. It asserted that both portions of the statute abridge its right to freedom of expression, safeguarded by the first amendment, expanded by the fourteenth to protect against state action, and that, because there is federal legislation concerning the same subject, the statute violates the supremacy clause of the Constitution. The State of Texas intervened to support Ms. Moore's position, arguing first that KVUE has not been injured and, therefore, lacks standing to challenge the statute; second, that if KVUE has standing, the federal courts should abstain until the statute is interpreted by a Texas court; and, finally, that the law is constitutional. We discuss these issues in turn.
Article III of the Constitution imposes limits on the cases federal courts may hear. This includes the requirement, broadly described as the justiciability doctrine, that there be a The very use of the terms "case or controversy" implies that the dispute must be real, not hypothetical, and that the plaintiff must be personally affected and thus have standing to sue.
Almost two centuries ago, the Supreme Court declined on this basis to give advice to President George Washington, whose request was transmitted by Thomas Jefferson, because no actual controversy was involved and the President sought only guidance. 4 The case or controversy requirement also forecloses our consideration of moot cases, 5 of abstract, hypothetical, and conjectural questions, 6 and, indeed, of all matters save those involving parties who have a real dispute about a matter in which their interests are genuinely adverse. We consider whether KVUE's case meets these requirements.
The basic inquiry in determining whether a case or controversy exists is whether the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." 7 Thus the requirement focuses on the issues in the case rather than on the party seeking to present them. The difference between a case or controversy and an abstract question is, however, one of degree and "is not discernable by any precise test." 8 It depends on, among other factors, the imminence of the harm, the adversariness of the parties' positions, and the reality of injury to the plaintiff.
The rule that parties seeking relief in federal court must have standing to sue is closely related to the case or controversy requirement. It focuses on whether the plaintiff before the court is a proper party to sue rather than on the issues in the case. We determine whether a party has standing to sue by ascertaining whether it has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of [the] issues ...." 9 A plaintiff may establish standing to sue in federal court by demonstrating that his federal rights are jeopardized by the action of a state. However, "persons having no fears of state prosecution except those that are imaginary or speculative ...." lack standing. 10 A litigant may not, therefore, challenge the constitutionality of a state criminal statute merely because he desires to wipe it off the books or even because he may some day wish to act in a fashion that violates it. 11
To invoke a federal trial court's jurisdiction, a litigant "must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." 12 But "it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." 13
On the other hand, one who has violated a state law and has been charged with that offense will not be allowed to file suit in a federal court to challenge the constitutionality of the statute if the state permits him to raise the constitutional issue in the proceeding pending in its court. 14 A federal decision at that juncture would interfere with the state's criminal process. Thus, one who seeks to challenge a state statute as violative of the federal constitution may not sue before he is truly injured; yet he may not wait until he is charged with a crime. He may invoke federal jurisdiction only if he can move through the narrow door between prematurity and exclusive state jurisdiction.
Our inquiry cannot always turn on either the "standing" or the requirement alone. The concepts are sometimes so interrelated that the determination can be made only by considering both. For example, in Younger, the Court held that three of the four plaintiffs, who had never been arrested, indicted, or even threatened with prosecution, lacked standing to sue because their complaint alleged only that they felt "inhibited" in their desire to distribute handbills by the statute they challenged. This fear, the Court held, was "imaginary or speculative." 401 U.S. at 42, 91 S.Ct. at 749, 27 L.Ed.2d at 674. As to them the Court focused attention on the standing aspect of justiciability, not on the existence of a controversy. The fourth plaintiff, who was actually being prosecuted in state court, had an obvious "controversy" with the state, id. at 41, 91 S.Ct. at 749, 27 L.Ed.2d at 673, 15 but was required nonetheless to present his constitutional argument in the criminal proceeding in state court.
In Steffel, however, the Court found an actual controversy because the plaintiff had been twice warned to stop distributing handbills and had been told that, if he continued to pass out the leaflets, he would likely be prosecuted. In addition, his handbilling companion had been prosecuted. The Court stated that this evidence was 415 U.S. at 459, 94 S.Ct. at 1215-16, 39 L.Ed.2d at 514 (citation omitted). It was not necessary for the plaintiff to allege or demonstrate irreparable injury. 16
In Babbitt, the Court considered a challenge to several provisions of a statute affecting the plaintiffs' conduct. The Court posed two situations: first, a case in which the plaintiff "allege[s] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [in which] there exists a credible threat of prosecution ...."; second, a case in which plaintiffs " 'do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible ....' " 17 In the former instance, the Court stated, the plaintiff need not wait for the state to initiate criminal proceedings in order to secure relief; in the latter, the plaintiffs "do not allege a dispute susceptible to resolution by a federal court." 442 U.S. at 299, 99...
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