Smothers v. Columbia Broadcasting System, Inc., 69-1898.

• Decision Date: 14 November 1972
• Docket Number: No. 69-1898.,69-1898.
• Court: U.S. District Court — Central District of California
• Parties: Tom SMOTHERS et al., Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant.

351 F. Supp. 622

Tom SMOTHERS et al., Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant.

No. 69-1898.

United States District Court, C. D. California.

November 14, 1972.

Slaff, Mosk & Rudman, by George Slaff, Stanley Fleishman and Bruce M. Polichar, Los Angeles, Cal., for plaintiffs Tom Smothers, Dick Smothers, Comedic Productions, Inc. Wilmer, Cutler & Pickering, Washington, D. C., and O'Melveny & Myers by William W. Vaughn, Los Angeles, Cal., for defendant Columbia Broadcasting System, Inc.

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

HAUK, District Judge.

This matter arises upon the Plaintiffs' complaint for damages and an injunction for alleged violation of Federal Constitutional rights. Plaintiffs have attempted to maintain the action by claims for relief under the First and Fifth Amendments to the United States Constitution and under the Federal Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq., as a Federal question case, 28 U.S.C. § 1331, alleging that Defendant CBS's conduct abridged and denied the Smothers Brothers' freedom of speech and press; restrained their right to present entertaining and informative programs and in doing so deprived them of liberty and property without due process of law; denied the Smothers Brothers equal protection of the laws; denied them access to the airways controlled by CBS; and curtailed the public's right to know and choose between various ideas and entertainment. Plaintiffs seek $1,000,000 for alleged injuries, an additional $2,000,000 in punitive damages, and a permanent injunction against CBS preventing it from censoring any entertainment programs whatsoever, and not just the Smothers Brothers' shows, no matter what political, social, moral, or aesthetic ideas the programs might express or tend to propagate.

SUMMARY OF FACTS

In 1966 Comedic Productions, Inc., owned and operated by the Smothers Brothers as producers of their shows, and Columbia Broadcasting System, Inc., entered into an agreement whereby Comedic would provide twenty-six programs to CBS for the 1966-67 television season, the series to run for five seasons upon annual options with increasing license fees to be paid for each new season's series optioned by CBS. In April, 1969, CBS cancelled out under the agreement for reasons which are in dispute between the parties but not in issue in this particular case. In September, 1969, Plaintiffs filed the instant action, No. 69-1898, for alleged violation of their constitutional rights along with two other actions—one for alleged violation of the Federal Antitrust statutes, No. 69-1899, and the other one for alleged violation of conventional contract rights, No. 69-1890. We are here concerned only with No. 69-1898, wherein the action is founded upon the claim that CBS, by its policy of insisting upon preview and "censorship", deleted from the taped Smothers Brothers shows material which CBS believed to be objectionable as not fit for prime time entertainment on its stations and network, thereby allegedly depriving Plaintiffs of a number of their Federal constitutional rights under the First and Fifth Amendments to the Constitution of the United States. The Antitrust action, No. 69-1899, was taken off calendar to await determination of the other two actions. At the pre-trial conference the Court set the contract action, No. 69-1890, for trial at a later date and expressed, sua sponte, the Court's doubt about its jurisdiction or at least the validity of the constitutional rights suit here in No. 69-1898, because there was no allegation by Plaintiffs that their constitutional rights had been or were being violated by "governmental or state action" as distinguished from "private activities." The Court then requested that the parties by appropriate pleadings bring this issue into focus and inform the Court of the facts and law which should govern its decision on whether to proceed with this "constitutional rights" case or not.

Whereupon Defendant filed its Motion for Summary Judgment, Plaintiffs filed their Opposition and Defendant countered with its Reply to the Opposition, all supported by excellently prepared and marshalled points and authorities. After hearing and full argument the Court granted the Motion for Summary Judgment on September 18, 1972, signing the Findings of Fact, Conclusions of Law and Judgment proffered by Defendant. Now by this opinion and order the Court reaffirms such action and puts in writing the additional facts, conclusions, and reasoning which led the Court to take the action it did in September. Unfortunately a necessary and long postponed hip replacement operation has resulted in delaying this Opinion until now, but the Court considers and orders that it shall also constitute findings of fact and conclusions of law in addition to those formal findings and conclusions heretofore signed.¹

The issues involved are:

1. Can the Plaintiffs base a private claim on the Federal Communications Act of 1934?

2. Can a private right of action for injunctive relief spring from the First and Fifth Amendments for violations of constitutional rights by a "private party" as distinguished from violations by a "governmental or state agency"?

3. Does CBS's conduct amount to "governmental or state action" within the meaning of the Constitution, which would allow suit based on a violation of constitutional rights of Plaintiffs by CBS's conduct?

THERE IS NO PRIVATE ACTION UNDER THE FEDERAL COMMUNICATIONS ACT OF 1934

The Complaint at the outset alleges in paragraph 2 that this action arises under the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., as well as under the First and Fifth Amendments to the Constitution. Let us take up this theory first. It has long been recognized that the Communications Act "did not create new private rights." Scripps-Howard Radio v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229 (1941). In light of this fact numerous courts have held that a violation of the Act does not give rise to a private cause of action for damages or injunctive relief. McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597, 600 (3rd Cir. 1945), cert. den. 327 U.S. 779, 66 S.Ct. 530, 90 L.Ed. 1007 (1946); Post v. Payton, 323 F. Supp. 799, 802 (E.D.N.Y.1971); Ackerman v. CBS, 301 F.Supp. 628, 631 (S.D. N.Y.1969); Gordon v. National Broadcasting Co., 287 F.Supp. 452, 455 (S.D. N.Y.1968); Daly v. West Central Broadcasting, 201 F.Supp. 238, 240-241 (S.D.Ill.N.D.1962), aff'd sub nom., Daly v. CBS, 309 F.2d 83 (7th Cir. 1962); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 87 F.Supp. 822, 824-825 (D.Mass.1949), aff'd 183 F.2d 497 (1st Cir. 1950). The rationale of these decisions was stated in Post v. Payton, supra, where the court held:

"Assuming that one could spell out from the complaint a violation of the Act by the failure of the defendant-trustees to comply with the terms and conditions set forth in their license, the remedy would nevertheless lie with the Commission and not in the district courts . . . It is clear that the Act created no new private rights nor afforded persons in plaintiffs' position a right to institute an action in the district courts (citations), the Commission being charged with its enforcement and providing the exclusive forum in which alleged violations may be vindicated. (Citations.)

"Consequently, the complaint fails to set forth a claim upon which relief can be granted under the Act." (323 F.Supp. 802)

There have been cases which have held that private actions can arise from violations of a Federal statute and from these violations there can be implied a private right of action for damages.² However, no cases even suggest or imply that there can exist a private action without the violation of a specific provision of a Federal statute, and of course we must draw the conclusion, inescapable as it is, that without allegations of conduct by CBS in clear violation of a specific provision of the Communications Act, Plaintiffs have failed to state a claim for relief thereunder and their theory in that regard disintegrates.

THERE IS NO PRIVATE ACTION UNDER THE FIRST AND FIFTH AMENDMENTS TO THE FEDERAL CONSTITUTION

Plaintiffs pray for injunctive relief by which CBS would be permanently enjoined from censoring any entertainment programs presented over its television network, and any expressions of social, political, aesthetic, moral or other ideas and experiences which are protected from censorship by the First and Fifth Amendments to the United States Constitution.

Plaintiffs do not have standing to request an injunction on behalf of the public or other producers than themselves alone. Nor have they sought to have this declared a class action under F.R.Civ.P., Rule 26. The Supreme Court has held that one may sue to seek redress for injuries done to him, but may not seek redress for injuries done to others, unless the situations and injuries are similar.³ Plaintiffs cannot, therefore, sue on behalf of the general public or other producers because there are absolutely no allegations that their situations and injuries are the same or similar.

In Gordon v. National Broadcasting Company, 287 F.Supp. 452 (S.D.N.Y. 1968), the plaintiff made a similar claim on behalf of the public. He was a candidate for President, and he alleged the defendant did not cover his activities as a candidate. The court pointedly held:

"Close scrutiny of the complaint reveals that most of the damage alleged to have been caused as a result of the defendant's alleged blackout, is claimed to have been suffered by the United States as a whole, rather than by the individual plaintiff, and it is clear that the plaintiff has no standing in this Court to assert such claims." 287 F.Supp. 454-455.

The claim for injunctive relief is also moot as to Comedic and the Smothers Brothers, since they are no longer producing entertainment programs for broadcast over any CBS facilities, stations or...