The opinion of the court was delivered by: BRIEANT
These causes have been consolidated at the instance of plaintiffs by an order of this Court (Pierce, J.) made December 3, 1971.
By order to show cause dated March 3, 1972, issued by Judge Tenney, plaintiffs in each action moved for summary judgment to be entered under Rule 56, F.R. Civ. P., "declaring void, illegal and unconstitutional § 8(a) (3) of the National Labor Relations Act, insofar as that statute may be deemed to authorize defendant's agreements with networks, broadcasters, stations and other employers in the television and radio industry which require or may purport to require plaintiffs . . . to continue to be members of the defendant . . . pay dues . . . and comply with [defendant's] regulations and orders as a condition of the production or broadcasting certain programs known as 'Firing Line', 'Spectrum' and/or other programs on which plaintiffs . . . may appear, and further, declaring that plaintiffs Buckley and National Review, Inc. may continue to make and sell the package show Firing Line and that plaintiffs . . . may continue to appear on television and radio as they see fit, irrespective of continued membership in defendant, the payment by them of . . . dues and their compliance with [defendant's] regulations and orders, all without harassment or interference by defendant . . . and further enjoining defendant . . . from threatening any network, broadcaster, station or other employer in the television and radio industry with any proposed action or otherwise or taking any action by reason of its employment of or intended employment of plaintiffs . . . on any television or radio show, or its use, or intended use, of a package show in which plaintiffs . . . appear, and further enjoining defendant . . . from threatening to take or taking punitive action of any kind whatever against plaintiffs should plaintiffs Buckley and Evans withdraw from membership in defendant . . . or fail to pay dues . . . or comply with any order of defendant . . ."
By notice of motion dated May 3, 1972, defendant also moved for summary judgment dismissing the complaints and the consolidated action for "lack of jurisdiction, and failure to state a claim against defendant upon which relief can be granted."
Both causes have been at issue for some time. Adequate discovery appears to have been conducted by deposition and interrogatories. With a reservation, not considered significant for purposes of this motion,
all parties concede that there are no contested material issues of fact. The Court finds that no contested issues of fact prevent disposition of these motions. Both plaintiffs seek to enforce rights said to be protected pursuant to the First, Fifth and Ninth Amendments to the Constitution of the United States, and more specifically, First Amendment rights.
M. Stanton Evans, plaintiff in 71 Civ. 3920, is a paid radio commentator, or analyst, of news, current events, politics, social, economic, religious, moral and ethical problems -- all of the great issues which divide us.
Pursuant to written contract with CBS News, a division of the Columbia Broadcasting System which owns and operates radio stations, and furnishes material which may be broadcast pursuant to license by other affiliated stations, Evans, referred to therein as "Artist", on his own responsibility, and not as a "staff employee", writes his own material and selects his own subject matter. He enjoys substantial freedom of expression. While CBS News personnel, in their discretion, may determine whether any program shall be broadcast, CBS may not, without Evans' prior consent, alter Evans' original creative work. Evans, pursuant to the contract, holds CBS harmless for damages and expenses including counsel fees, arising out of the use of any materials furnished by him or words spoken by him.
The viewpoint and position (or "bias") which Evans reflects is conservative. He alleges that he is ". . . generally considered a spokesman for the conservative point of view on politics and national and international affairs".
Broadcasting is neither his primary nor full-time occupation, which is that of editor of the Indianapolis (Ind.) News, a substantial daily newspaper. He is a prominent national figure, and is an author of books and essays, a lecturer and debater. It is this independent status, and his standing as an author and lecturer, which creates public interest in his opinions, which are not those of the producer, station or network.
William F. Buckley, Jr., plaintiff in 71 Civ. 146, is a public figure. He has been a candidate for Mayor of New York City and speaks regularly on current events, politics, social, economic and religious subjects. He appears with some frequency on television, and as a paid lecturer. He writes a syndicated newspaper column entitled "On The Right", published three times a week by over 320 newspapers, in which he writes as a commentator and analyst of news, current events, politics, social, economic, religious, moral and ethical problems. He is the principal participant of what he characterizes as a "TV Show" called "Firing Line",
and appears often as a guest with or without pay on other television programs, particularly television panel discussions of public events and issues.
He has written magazine articles and books. It is difficult to state with certainty what his primary or full-time occupation is; however, he serves as editor of a magazine, "National Review", and, like Evans, is probably not engaged in broadcasting as his primary or full-time occupation.
Buckley too, is a conservative. He has submitted on the motion a description of his professional standing prepared by Professors Leonard W. Levy and Arthur Young, General Editors of the American Heritage series of books as a foreward to the book "Did You Ever See a Dream Walking?", an anthology of American conservative opinion of which Buckley was the editor. Professors Levy and Young write in relevant part:
"Mr. Buckley is the foremost expositor of rational, humanistic conservative thought in America today. He is a man for all conservative seasons: author, politician, TV star, popular lecturer and editor-in-chief of the nation's leading journal of conservative opinion, National Review. In every capacity he is an outstanding educator, though not an academician. Famed as a tough-minded adversary, an entertaining and brilliant conversationalist, and a scintillating stylist, he is also an enormously learned man and a serious thinker. His introduction to this book is written with his characteristic charm, wit, ego, trenchancy, and, of course, strong bias . . . Mr. Buckley is eclectic . . . He flatly rejects the intolerant and rigid dogmatism of Ayn Rand, the extreme and unrealistic anti-statism of conservatives who verge on anarchism, and the apoplectic and reckless reactionarism (sic) of the John Birchers with their conspiracy theories. Mr. Buckley's conservatism shares nothing in common with the conservatism of Big Business or of the self-appointed super-patriots, bigots and xenophobes."
Plaintiff National Review, Inc., of which Buckley is President, and sole shareholder, is a co-producer of "Firing Line", together with RKO General, Inc., a broadcaster. "Firing Line" is a regular television program known in the television industry as a "package show" because it is produced and broadcast pursuant to contract. On about March 31, 1971, Southern Educational Communications Association ("SECA"), supplanted RKO General as to future Firing Line programs, under a new contract between National Review and SECA, pursuant to which Firing Line was to be produced for distribution to over 200 non-commercial TV stations, by SECA, whose performance was guaranteed by the Corporation for Public Broadcasting.
Production originally took place in New York, but later, by contract, production was effectuated in numerous places, and at various television studios or stations throughout the United States.
Defendant American Federation of Television and Radio Artists ("Aftra") is an unincorporated association organized under the laws of the State of New York and affiliated with the AFL-CIO. It is in essence a labor union, or collective bargaining agent, for artists engaged in the fields of radio and television. It has locals in New York and in many other places throughout the country where television and radio productions originate.
Aftra is, and for many years prior to 1967 was, a collective bargaining agent, and is a "labor organization" as defined by the National Labor Relations Act.
Wherever permitted by state law, Aftra has bargained for, and obtained, union shop conditions, with RKO General, Inc., Columbia Broadcasting System and many other television and radio producers, networks and broadcasters. These contracts incorporate by reference, as in the nature of a contract of adhesion, a so-called "Code of Fair Practice". Section 84 of Aftra's Code of Fair Practice for the television industry reads in relevant part as follows:
Until and unless the union security provisions of the Labor Management Relations Act, 1947, as amended, are repealed or amended so as to permit a stricter union security clause the following provisions shall apply:
'It is agreed that during the term of this agreement, we will employ and maintain in our employment only such persons covered by this agreement as are members of the American Federation of Television and Radio Artists in good standing or as shall make application for membership on the thirtieth (30th) day following the beginning of employment hereunder or the date of execution of this agreement, whichever is the later, and thereafter maintain such membership in good standing as a condition of employment.'
In the event the said Act is repealed or amended so as to permit a stricter union security clause the above provision shall be deemed amended accordingly. The provisions of this paragraph are subject to said Act."
This provision has been in effect for some years and is specifically authorized in New York and elsewhere by § 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (3), which reads in relevant part as follows:
"§ 158. Unfair labor practices
(a) It shall be an unfair labor practice for employer --
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
(b) It shall be an unfair labor practice for a labor organization or its agents --
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . ."
Aftra also has a Code of Fair Practice for radio broadcasting, as distinguished from television broadcasting. This Code, applicable to plaintiff Evans by Section 57 thereof, provides for union shop conditions in terms substantially identical to that imposed in the television industry.
For some time prior to November 16, 1966, the provisions of the Aftra television codes defined the "People Covered", artists for whom Aftra was the collective bargaining agent, in a manner which would have excluded plaintiffs. Section 11 of the 1950 Code read in part as follows:
All persons engaged as talent, e.g., actors; comedians; masters-of-ceremonies; quiz masters; disc jockeys; singers; dancers; announcers, (other than staff duties of staff announcers); sportscasters; specialty acts; walk-ons; extras; puppeteers; reporters and analysts (with the exception of government employees and persons who are engaged occasionally on a single program basis because they are specialists whose regular employment or activity is in the field in which they report, such as college professors and scientists) in the fields of home economics, fashions, farm and rural subjects, and market reports; models; moderators; members of panel where format of program requires such persons to participate generally in entertainment. Excluded from the provisions of this agreement are members of panel who take part in discussion of news, education, or public affairs programs, or persons who act only as judges of contests.
The above provision was found in the first television contract, effective December 8, 1950, entered into by Television Authority with the network companies and other producers of television programs.
Beginning with the 1956-1958 Aftra Code of Fair Practice for Network Television Broadcasting, an effort was made to distinguish services rendered in the field of news by commentators and analysts from the services performed by others who were not employed as commentators or analysts.
The coverage provisions of the Code effective 1963-1966, read in part as follows:
Excluded from the provisions of this agreement are members of panel who take part in discussion of news, education, or public affairs programs, or persons who act only as judges of contests.
This Code also applies to all persons rendering services in the field of news including but not limited to persons who criticize, review and/or comment on the following: books, the fine arts, music, sports, the theatre, movies, dance, radio, television, society, and travel, and including persons who perform in live, film, or recorded news inserts in network television programs. However, commentators and analysts in the field of news (other than persons who criticize, review and/or comment as set forth in the preceding sentence) are excluded from the coverage of this Code on any program upon which they are performing (among other services in the field of news) services in the capacity of commentator and analyst; this exclusion shall apply to services in the field of news performed by a commentator or analyst on a program series in the field of news where such services as analyst or commentator (other than as a person who criticizes, reviews and/or comments as set forth in the preceding sentence) are performed on a substantial number of the programs on which the commentator or analyst so performs on such series.
By the Code effective November 16, 1966 (1966-1969 Code) coverage extended to all persons other than staff newsmen rendering services in the field of news, expressly including commentators and analysts, ending the prior distinctions that had been made. Its Section 75 reads in part as follows:
Excluded from the provisions of this agreement are members of panel who take part in discussion of news, education, or public affairs programs, or persons who act only as judges of contests; provided that services of staff newsmen on such panel programs shall be subject to their respective staff agreements.
This Code also applies to all persons other than staff newsmen rendering services in the field of news including but not limited to commentators and analysts and persons who criticize, review and/or comment on the following: books, the fine arts, music, sports, the theatre, movies, dance, radio, television, society, and travel; and including persons who perform in live, film, or recorded news inserts in network television programs. However, management personnel delivering editorials are excluded from the coverage of this Code.
The same coverage pertaining to commentators and analysts rendering services in the field of news is contained in the 1969-1972 Code, and in the staff newsmen's agreement entered into by Aftra with the network companies. It remains effective.
Plaintiffs contend that the industry Codes of Fair Practice imposed on them by Aftra as a result of contracts with employers, constitute per se an unreasonable prior restraint on their freedom of speech, guaranteed by the First Amendment to the United States Constitution. They assert that they are exposed to union discipline. Provisions of the Aftra constitution imposing this discipline read in relevant part as follows:
"Any member who shall be guilty of an act, omission, or conduct which in the opinion of the Board is prejudicial to the welfare of the Association, or of any of its Locals, or of any of its members, as such, or any member who shall fail to observe any of the requirements of the Constitution, or of any By-Laws, rules, regulations or others lawfully issued by the Association, any Local or any duly authorized committee or agent of said Association or Local, or any member who shall in any way be indebted to the Association or any Local thereof, may, in the discretion of the Board, be either fined, censured, suspended or expelled from membership. The Board may discipline a member for each and every offense or violation, and no member shall be exempt from disciplinary action because of any previous action of the Board upon some other or different charge." (Article XVIII, Sec. 1)
In addition, the New York Local of Aftra, and presumably other locals, imposes on members the following obligations as found in Article X of the Aftra New York Constitution, which reads in relevant part as follows:
" The Local may . . . order its members to refrain for a given time or until further order of the Local Board under specified conditions or in any manner whatsoever from working for, dealing with, or having any business relations with any one or more employers, producers, networks, stations, advertising agencies, sponsors, independent packagers, transcription companies, phonograph recording companies, agents, managers, impresarios or other persons connected with the radio, television, phonograph record business."
Plaintiffs view this element of union discipline, and the entire matter of being required to join a union in order to express their own opinions and to present analysis and commentary having a conservative bias, as unlawful and constituting an unreasonable prior restraint and also as having a chilling effect on their First Amendment rights. We are thus tendered the issue as to whether this union jurisdiction, achieved through Act of Congress (supra, slip op. at p. 10) is unconstitutional as applied to plaintiffs' segment of radio and television employment.
As previously noted, the first television contract, effective December 8, 1950, made by Aftra's predecessor with the network companies and other producers of television programs, contained a "People Covered" provision which defined those members of the collective bargaining unit as persons engaged as "talent". Excluded from coverage as "talent", and therefore not defined as "artists" were those persons who "are members of panel who take part in discussion of news, education or public affairs programs ".
The affidavit of Kenneth Groot, Executive Secretary of Aftra's New York Local, which affidavit is sworn to April 26, 1972, points out that "as the news bulletins, newscasts, news programs and news documentaries became increasingly important in television, the network companies contended that the commentators and analysts in the field of news should be excluded from the scope of the contract 'because the requirement of union membership might somehow infringe their right to speak freely'."
Mr. Groot observes that the exclusion of news commentators and analysts from the coverage of the collective bargaining agreements "took on extra significance because producers began to classify ordinary news reporters as analysts to keep them out of the bargaining unit ".
Such technique is not unheard of in industrial unionism, where employers attempt to exalt production workers into "foreman" or "management" status, so as to exclude them from the bargaining unit and prevent them from voting in recognition elections.
We think, however, that this threat to union security could have been met by making factual determinations on an ad hoc basis; management permitting an announcer or reporter the opportunity to disgorge an occasional ad lib will not make him a commentator or analyst. Reasonable administration of the prior union contract should have avoided this difficulty.
Effective November 15, 1966, as Mr. Groot's affidavit notes, the National Code of Fair Practice for network television broadcasting was made applicable to all persons other than staff newsmen rendering services in the field of news. Expressly included were commentators and analysts. Staff newsmen, as distinguished from free lance newsmen, also became covered under separate agreements.
We must remember the admonition that "We are not to 'shut our minds ' as judges to truths that 'all others can see and understand. '"
It is obvious that these changes in the persons included in the collective bargaining unit were arrived at as a result of collective bargaining between Aftra and its membership on the one hand, and the employers, broadcasters and producers on the other. Such bargaining presumes a quid pro quo. Whether the employers gave up the prior exclusions enjoyed with respect to commentators in order to gain some economic benefit for themselves in some other aspect of their labor relations is of no great importance. The public, and those who would be commentators and analysts enjoying full First Amendment rights, were not participants in, nor are they barred by the results of such bargaining, in ...