These documents generally allege that United States aid to Israel is illegal, that information showing the illegality of this aid has been furnished to various news media, including some of the moving defendants, and that the aforementioned news media have failed to publish this information.
Some of the documents appear to be part of a private criminal prosecution under federal mail fraud statutes. I make no judgment on the propriety of such a prosecution. It is clear, however, that these documents are not relevant to the motions to dismiss presently before the Court; the parties alleged to have made false representations to the plaintiff by mail do not include any of the moving defendants.
Because the documents that comprise plaintiffs' exhibits either do not mention the moving defendants at all, or do not state any specific conduct on the part of the individual moving defendants, or do not describe conduct on the part of the moving defendants that is not constitutionally protected, see Miami Herald Publishing Co. v. Tornillo, infra, I shall not refer to those exhibits again in this opinion.
ISSUES BEFORE THE COURT
1. Procedural Issues
A. Defendants' Compliance with Notice Requirements
Plaintiffs attack the motions filed by some of the moving defendants on a number of procedural grounds, for example, the defendants' alleged failure to comply with the notice requirements of Local Rule 36 and Fed.R.Civ.P. 6(d), and their alleged failure to answer plaintiffs' complaint in timely fashion. Plaintiffs urge the Court to deny the relevant motions, to apply the sanctions of Fed.R.Civ.P. 8(d), and in some instances to enter a default against particular defendant. Plaintiffs' position does possess some superficial merit, for it is not clear whether all of the moving defendants fully complied with the notice requirements of the Local and Federal Rules. It was, however, precisely to avoid plunging this case into a procedural morass over deadlines that may or may not have been met that I freely granted all of plaintiffs' motions for enlargement of time in which to respond to the papers filed by the moving defendants. See Docs. §§ 57-59, 61-63. I was concerned lest plaintiffs, who are proceeding pro se, be prejudiced by any real or alleged failure of defendants to comply with filing deadlines. I am confident that my rulings on plaintiffs' motions for enlargement of time have cured any prejudice that might have existed.
There is another consideration that undercuts plaintiffs' procedural arguments. The last motions to which plaintiff was obliged to respond were filed on December 1, 1975. Those motions were not scheduled for oral argument until January 23, 1976. Plaintiffs thus had at least seven full weeks to file supplemental memoranda if they so desired.
Moreover, on October 29, 1975, plaintiffs filed a comprehensive memorandum in opposition to the motions of six defendants to dismiss or strike the complaint. Doc. # 42. This memorandum thoroughly sets forth plaintiffs' theory of their case and the principal arguments on which they rely in opposing the motions to dismiss or strike. While the memorandum by its terms applies to only six of the moving defendants, plaintiffs have incorporated it in subsequent papers relating to other defendants, and I have, in any event, treated it as though its arguments had been advanced in opposition to all of the motions to dismiss or strike. Since the arguments of the defendants overlap to a significant degree, the plaintiffs' October 29 memorandum covers most of them.
Finally, in view of the clear and settled state of the law on the issues raised by the defendants, it would be grossly unfair to deny their motions or, in the extreme case, to enter a default against any of them for a real or alleged failure to comply with filing deadlines. The law favors adjudications on the merits. It does not favor either defaults or preclusions, especially when the party against whom the default or preclusion is sought possesses a meritorious defense, and especially when the complexity and prolixity of a party's pleadings materially increase the difficulty of an adversary's efforts to respond to them. That is precisely the case here. Accordingly, I hold that the defendants are not barred from asserting their undoubtedly meritorious defenses because of any real or alleged failures to comply with filing deadlines.
B. Plaintiffs' Compliance With Fed.R.Civ.P. 11
In his initial Complaint, Doc. # 1, Mr. Ahmad was the only named plaintiff, and described himself as "Plaintiff & Attorney in Fact." In his Amended Complaint, Doc. # 6, however, Mr. Ahmad, again describing himself as "Plaintiff & Attorney in Fact," listed an additional forty-odd parties plaintiff, none of whom have signed either the Amended Complaint or any other pleading in this action.
Defendants allege that Mr. Ahmad does not purport to represent these additional plaintiffs as a licensed attorney and is not a member of the bar of this Court. These allegations stand unrebutted in the record. Defendants move the Court to strike the Complaint for failure to comply with the requirements of Fed.R.Civ.P. 11, since the Complaint does not establish that the additional plaintiffs have agreed that Mr. Ahmad should bring this action in their behalf.
In pertinent part, Fed.R.Civ.P. 11 requires that "[a] party who is not represented by an attorney shall sign his pleading and state his address." The purpose of this portion of the rule is obvious:
"Undoubtedly, one of the justifications for the quoted provision of Rule 11 is to make certain that the persons who are named as parties are actually in assent to the filing of an action on their behalf." Huffman v. Nebraska Bureau of Vital Statistics, 320 F. Supp. 154, 156 (D. Neb. 1970).
Rule 11 further provides that "[if] a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham or false and the action may proceed as though the pleading had not been served."
It is clear that, in the instant action, Mr. Ahmad has not complied with Rule 11. He is not an attorney, yet none of the additional parties plaintiff he listed in his Amended Complaint has signed any pleading in this case. These additional parties plaintiff include, among others, President Anwar El Sadat of Egypt, Yassir Arafat of the Palestinian Liberation Organization, King Khaled of Saudi Arabia, President Hafez Assad of Syria, King Hussein of Jordan, President Omar Khadafy of Libya, Colonel Houari Boumedienne of Algeria, and Prime Minister S. K. Mujibur Rahman of Bangladesh. Obviously, on the basis of the present record, I cannot determine whether any of these individuals have agreed that Mr. Ahmad may file suit in their behalf. Indeed, I would venture to guess that the overwhelming majority of them are not even aware of the existence of his lawsuit. Mr. Ahmad, even though he is proceeding pro se, can scarcely claim to be unaware of the requirements of Fed. R. Civ. P. 11. In my Order of September 5, 1975, I advised him in no uncertain terms that if he wished to add anyone as a party plaintiff in Civil Action No. 75-1851, he must have their written permission to do so. Because Mr. Ahmad had more than adequate notice of the requirements of Rule 11, it would not be unfair to hold him accountable for a flagrant violation of those requirements. Given the other meritorious defenses raised by the moving defendants, however, I need not, and do not, decide whether the Complaint should be stricken for failure to comply with Fed.R.Civ.P. 11.
2. The Merits of the Motions to Dismiss
A. Newspapers and Newsgathering Organizations
This category of defendants includes the Philadelphia Bulletin, Philadelphia Newspapers, Inc. (publishers of the Philadelphia Inquirer and the Philadelphia Daily News), the New York Times, the Wall Street Journal, the Associated Press, and United Press International. The core of plaintiffs' claim against these defendants is an alleged failure to publish certain information. Complaint, para. 9. Unfortunately for plaintiffs, this claim is not actionable. This Court cannot, consistent with the constitutional guarantee of a free press, order these defendants to publish certain information or assess damages against them for past failures to publish that information. As the Supreme Court said in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974):
"A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content, of the paper and treatment of public issues and public officials -- whether fair or unfair -- constitutes the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."
Plaintiffs' complaint against the moving defendants that are either newspapers or news-gathering organizations must therefore be dismissed for failure to state a claim upon which relief may be granted.
B. Associations of Publishers and Editors
In this category of moving defendants are three organizations, the American Society of Newspaper Editors, the American Newspaper Publishers Association, and the National Newspaper Publishers Association. To the extent that these organizations are sued because of their alleged editing and publishing activities, plaintiffs have of course failed to state a claim against them. Miami Herald Publishing Co. v. Tornillo, supra.
In addition, the complaint does not contain any specific allegation of any act or conduct by these defendants. Neither does it contain any specific statement of any injury or damage suffered by plaintiffs as a result of any acts or conduct by these three organizations. See Docs. ## 1 and 6. Complaints in civil rights cases must be specifically pleaded; they may not consist merely of conclusionary allegations that are not supported by facts. Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970); see Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967); Everett v. City of Chester, 391 F. Supp. 26, 29 (E.D. Pa. 1975). Plaintiffs' complaint against these three defendants therefore must also be dismissed on the ground that it does not plead any specific acts or conduct by them.
C. The American Bar Association
The Complaint does not contain any specific allegation of any acts or conduct by this defendant. Neither does it contain any specific statement of any injury or damage suffered by plaintiffs as a result of any acts or conduct by this defendant. This total absence of specific allegations against this defendant fatally flaws plaintiffs' pleadings. Kauffman v. Moss, supra ; see Fletcher v. Hook, supra; Negrich v. Hohn, supra; Everett v. City of Chester, supra. Plaintiffs' complaint against the American Bar Association must therefore also be dismissed.
D. Radio Stations, Television Stations and Their Personnel
This category includes KYW Radio and Television, WPVI Television, Vin Burke, who is the assignment editor of WCAU-TV, and CBS Inc., which is the owner and operator of WCAU-TV. These defendants are arguably within the scope of the holding in Miami Herald Publishing Co. v. Tornillo, supra. If they are, that fact alone would justify dismissal of the complaint as it relates to them. I need not, however, decide this question, because the complaint against them should be dismissed on at least two other grounds.
In the first place, the complaint is as vague and conclusory in its allegations about these defendants as it is in its allegations about the defendants I have discussed above. Because the complaint fails to allege specific facts about these defendants, it must be dismissed. Kauffman v. Moss, supra.
The second reason mandating dismissal of the claims against these defendants is the failure of plaintiffs to exhaust the administrative remedies available to them under federal law. Though plaintiffs do not allege jurisdiction under the Communications Act of 1934, 47 U.S.C. § 151ff., it is clear that their substantive claim against defendant broadcasters rests upon alleged violations of the "fairness doctrine," which has been developed by the Federal Communications Commission over the past several decades and approved by Congress in amendments to the 1934 Act. The doctrine requires broadcasters "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." 47 U.S.C. § 315(a). See generally Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969). In short, plaintiffs allege that defendant broadcasters have not told plaintiffs' side of the story. I need not, and do not, make any judgment on the merits of that claim. Congress has delegated the primary responsibility for enforcing the "fairness doctrine" to the Federal Communications Commission, not the district courts. See Columbia Broadcasting System, Inc. v. Democratic National Committee, supra; Red Lion Broadcasting Co. v. FCC, supra. Indeed, the Commission is the exclusive primary forum in which alleged violations of the Act may be vindicated. Post v. Payton, 323 F. Supp. 799, 802 (E.D. N.Y. 1971); Ackerman v. Columbia Broadcasting System, Inc., 301 F. Supp. 628, 631 (S.D.N.Y. 1969); Gordon v. National Broadcasting Company, 287 F. Supp. 452, 455 (S.D.N.Y. 1968). The instant complaint contains no hint that plaintiffs have applied to the Commission for relief. Accordingly, it must be dismissed against defendant broadcasters for failure to exhaust the federal administrative remedies provided by Congress as part of a comprehensive statutory scheme to regulate the broadcasting industry in the public interest.
E. The Issue of Standing
A final issue raised by some of the moving defendants applies not only to them, but to all of the defendants in this action as well. As the Court construes the complaint, the relief it seeks is two-fold: (1) an injunction restraining the United States from furnishing foreign aid to the State of Israel; and (2) an injunction requiring the defendant news media to publicize the alleged illegality of United States foreign policy. In Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-21, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974), the Supreme Court held that "standing to sue may not be predicated upon an interest . . . which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensible element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution." In the instant case, the plaintiffs have not alleged, nor is it likely that they will ever be able to allege, that they have suffered the "concrete" or individual injury from either the federal government or the news media that Schlesinger requires. Accordingly, they lack standing to sue, and their action must be dismissed as against all defendants.
Given the barrage of pleadings and allegations that the primary plaintiff has filed, it is evident that he does not lack zeal as to those issues about which he feels strongly. Nevertheless, it is clear that he has totally misconceived the role of the judiciary in our federal system. The relief he seeks would require this Court to assume direction of the foreign policy of the United States and to violate the First Amendment by abridging the constitutionally protected editorial discretion of the defendant news media. Some cases simply do not belong in federal court; this is one of them. Plaintiffs lack standing to bring this action; they have failed to state a claim upon which relief may be granted; they have not described with adequate specificity the conduct they complain of; and they have not exhausted their federal administrative remedies against the defendant broadcasters. For these reasons, their action must be, and is, dismissed with prejudice against all defendants.
BY THE COURT:
A. Leon Higginbotham, Jr.
AND NOW, this 10th day of June, 1976, for reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED and DECREED that defendants' Motions to Dismiss are GRANTED, and plaintiffs' Complaint is DISMISSED with prejudice against all defendants.
BY THE COURT:
A. Leon Higginbotham, Jr.