By The Beachwood Democracy Affairs Desk
First, the press release. Then, highlights from the lawsuit.
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The Illinois Green Party and candidates Rich Whitney and LeAlan Jones filed suit in federal court against public television station WTTW, the Corporation for Public Broadcasting, the Public Broadcasting Service and President and CEO of WTTW Daniel J. Schmidt. Gubernatorial candidate Whitney and Senatorial candidate Jones were both excluded from debates which occurred on WTTW this week. This happened despite the Illinois Green Party being one of only three legally established political parties in the state. Furthermore, Whitney received over 360,000 votes in the 2006 gubernatorial election.
The complaint alleges that WTTW, PBS and the CPB violated their 501(c)(3) status by conducting debates that had the effect of participating in, or intervening in a political campaign “on behalf of (or in opposition to) any candidate for public office.” These debates plainly had the effect of supporting the Democratic and Republican candidates, who alone were provided with a forum to propagate their views, to the exclusion of the two ballot-qualified Green Party candidates. The suit also charges these three corporate defendants with having violated the Federal Communications Act, including its Equal Time provisions pertaining to political candidates, by sponsoring a debate that gave the Democratic and Republican candidates more time than their Green Party challengers.
In a third count, the plaintiffs charge the three corporate defendants with violating the Corporation for Public Broadcasting Act which clearly states that, “The Corporation may not contribute to or otherwise support any political party or candidate for elective public office.”
Finally, the complaint alleges that Schmidt violated the First and Fifth Amendment rights of Whitney and Jones by discriminating against them on the basis of their political views.
“We gave WTTW every opportunity to do the right thing and invite me into the debate and it refused,” Whitney explained. “I was even there, right outside the building protesting Thursday evening, and would have stepped in to enter the debate if the station had invited me at 6:59. But WTTW stubbornly refused to invite me and betrayed its own purpose and mission of serving the public interest.
“This is an outrage,” he continued. “A public broadcasting station has a solemn obligation to inform the public by presenting all points of view on the issues, as well as equal time for ballot-qualified candidates. It is not supposed to play favorites, yet WTTW used taxpayer funds to promote the campaigns of its two favored candidates. Think about it: a taxpayer-supported public broadcasting station favored the corporate-sponsored candidates over the two public-interest candidates. LeAlan and I don’t accept corporate sponsorship as a matter of principle. What a sad day this is for broadcasting history and our democracy.
“WTTW not only committed an offense against American taxpayers; it also disrespected the voters. The people of Illinois deserve to hear all points of view of all ballot-qualified candidates put to the test of debate. The voters of Illinois deserve to hear real answers to the real problems afflicting them. WTTW chose to deprive the voters of that opportunity and instead subjected voters to a repeat of the same nauseating spectacle that they’ve already witnessed in the other so-called debates between Pat Quinn and Bill Brady – an uninformative mud-slinging match between two candidates who consistently refuse to address the burning question of the budget crisis in Illinois, and who are both content to allow the systematic destruction of public education, public colleges and universities, and the public sector in Illinois.
“To tell voters that their only choice is between Pat Quinn and Bill Brady is like telling them that they have a choice between driving off a cliff at 55 miles an hour and driving off a cliff at 60 miles an hour. Now choose the lesser evil, because you sure don’t want to even consider ‘wasting your vote’ on that other candidate.”
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COMPLAINT FOR INJUNCTIVE, DECLARATORY RELIEF AND MONETARY DAMAGES/NATURE OF COMPLAINT
This complaint arises from the censorship of legally qualified candidates from debates hosted and publicly broadcast by a publicly-funded, tax-exempt television station in the Chicagoland area.
Defendants, WTTW, CPB and PBS willfully and intentionally undertook “political activity” that violated their 26 U.S.C. 501(c)(3) status by sponsoring candidate debates that promoted two established parties’ candidates and opposed one established party’s candidates. In addition, these entities are alleged to have violated the terms of their license under the Federal Communications Act (47 U.S.C. 151 et seq.), by denying equal access and opportunity to legally qualified candidates to participate in debates, including the willful and intentional opposition to Green Party candidates. Defendant, Schmidt, is alleged to have violated Whitney’s and Jones’ First and Fifth Amendment rights by discriminating against them on the basis of their political views. The Defendants’ actions manufactured and created false consent and approval for Democratic Party and Republican Party candidates, and opposition to Green Party candidates to their detriment and harm in the eyes of the voters in Illinois.
FACTS
In recent years, WTTW has broadcast debates in Chicago and the geographically surrounding area, between and among candidates for political office in its broadcast, including Illinois Governor, United States Senator, and other elected offices.
In October 2010, WTTW promoted, broadcast, and otherwise publicly disseminated candidate debates, incorrectly referred to as “candidate forums,” between the Gubernatorial and Senatorial candidates, whereby candidates are present at the same time and location, and engage in a unique discussion format that allows different views to be expressed and rebutted contemporaneously.
Despite the fact that the Green Party is legally afforded the status of “established political party” pursuant to the Illinois Election Code, WTTW intentionally and willfully excluded Plaintiffs, Whitney and Jones, from the political debates it promoted, broadcast and otherwise publicly disseminated on October 27, 2010 and October 28, 2010. Defendants also excluded Green Party candidates from other debates as well.
Counsel for the Green Party sent letters to, inter alia, WTTW production staff and CEO Daniel J. Schmidt requesting the inclusion and participation of Green Party candidates in the debates in advance of the actual debates.
The letters pointed out that WTTW’s refusal to afford full participation to Green Party candidates was un-democratic, counter to its self-described mission to operate in the public interest, violated its obligations as a 501(c)(3) tax-exempt entity under the Internal Revenue Code and violated the equal access requirements of the Communications Act of 1934.
Despite the Plaintiffs’ best efforts to notify WTTW of their discriminatory and biased plan to exclude Green Party candidates, and allow WTTW an opportunity to resolve this matter, WTTW refused to reconsider its position, and this lawsuit ensued.
On information and belief, Defendants have in previous years been perceived by the public and voters in Illinois to be a generally non-partisan and objective source of information because of their public funding, as compared to commercially funded broadcasters, which rely exclusively upon sale of advertising time.
In light of the U.S. Supreme Court’s recent decision in Citizens United v. FEC, 130 S.Ct. 876 (2010), voters in Illinois are looking to and relying upon Defendants more so than commercially funded broadcasters for information about candidates during this election cycle.
Based upon the rapidly escalating corporate financing of elections, it is therefore even more important than ever before, that publicly funded broadcasters such as Defendants strictly adhere to their mission of serving the public, and avoid all partisan political activity that may favor or oppose legally qualified candidates for public office that will appear on the ballot in Illinois.
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The Internal Revenue Code, 26 U.S.C. 1 et seq., regulates the taxation of income of corporations and individuals.
In Subtitle A, Subchapter F, the Code established requirements for organizations such as Defendants to acquire tax-exempt status. 26 U.S.C. 501 et. seq. 26. 26 U.S.C. 501(c)(3), establishes and describes the requirements for one category of tax-exempt organization, and reads in toto:
“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific,testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
IRS guidance has further established that a debate or forum that shows a preference for or against a certain candidate of party constitutes a prohibited activity under Subchapter F; IRS guidance provides no “safe harbor” for reliance upon commercially-funded polling data to exclude legally qualified candidates from candidate debates or forums.
Thus, tax-exempt organizations are prohibited from any activities that may be beneficial or detrimental to any candidate or party.
If the tax-exempt organization chooses to host a political debate or forum, it must provide an equal opportunity to other candidates seeking the same office and it may not indicate any support or opposition to any candidate.
Defendants’ willful and intentional refusal to include Plaintiffs unquestionably influences the public discourse, impermissibly manufactures apparent approval for candidates, and improperly intervenes in the associated political campaigns.
Defendants’ refusal to include Plaintiffs inures to the benefit of, and is on behalf of, the included candidates, and impermissibly influences the legislative process which should be the purview of the People – citizens of the state of Illinois.
Defendants’ refusal to include Plaintiffs constitutes promotion of the so-called “two-party system,” and opposition to more than two established political parties, which has no legal justification or status; on the contrary, the Illinois Election Code and Illinois Constitution allow for the simultaneous existence and operation of more than two political parties in Illinois.
Defendants’ refusal to include Plaintiffs confers an unjustified imprimatur of legitimacy and endorsement of the Democratic and Republican parties and their candidates, and wrongly and improperly conveys to the public an aura of illegitimacy on the Green Party, its candidates and platform.
By refusing Plaintiffs’ access to their debates and political forums, the Defendants have violated restrictions that Defendants agreed to in exchange for the privilege of being exempt from paying federal taxes, as provided in 26 U.S.C. 501(c)(3).
Plaintiffs have been damaged thereby, including but not limited to loss of opportunity to equally address the voters of Illinois, apparent opposition by civic leaders and publicly funded broadcasters in the Chicago land area, the false and unfounded perception advanced by the Defendants that Plaintiffs are somehow not legally qualified for office, and otherwise publicly opposed by Defendants in the eyes of Illinois voters and the public at large.
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The Communications Act of 1934 47 U.S.C. 151 et seq. regulates and provides licensing requirements for broadcast radio and television stations.
The Act creates the Federal Communications Commission, and obligates the Commission to operate in the “public convenience, interest, or necessity…”; the Commission is required to grant and renew licenses “if the Commission finds that public interest, convenience, and necessity would be served thereby.” 47 U.S.C. 307(a) & (c)(1).
Section 315 of the Act (47 U.S.C. 315) sets for the the requirements for licensees regarding candidates for public office, as follows:
Candidates for public office
(a) Equal opportunities requirement; censorship prohibition; allowance of station use; news appearances exception; public interest; public issues discussion opportunities. 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 under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any-
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
Sections 312(a)(2), (3), (4) and/or (7), (47 U.S.C. 312) provide for administrative sanctions, including revocation of license, for licensees that willfully or repeatedly failure to operate substantially in accord with the terms set forth in their license.
Defendants’ refusal to include Plaintiffs confers an unjustified imprimatur of legitimacy and endorsement of the Democratic and Republican parties and their candidates, and wrongly and improperly conveys to the public an aura of illegitimacy on the Green Party, its candidates and platform.
By promoting, broadcasting, and otherwise disseminating the debates between the certain but not all Gubernatorial and Senatorial candidates, to the exclusion of Plaintiffs, Defendants have denied reasonable and equal access in violation of their FCC license.
Defendants’ refusal to include Plaintiffs constitutes promotion of the so-called “two-party system,” and opposition to more than two established political parties, which has no legal justification or status; on the contrary, the Illinois Election Code and Illinois Constitution allow for the simultaneous existence and operation of more than two political parties in Illinois.
Plaintiffs were proximately harmed thereby, including but not limited to loss of opportunity to equally address the voters of Illinois, apparent opposition by civic leaders and publicly funded broadcasters in the Chicago land area, the false and unfounded perception advanced by the Defendants that Plaintiffs are somehow not legally qualified for office, and otherwise publicly opposed by Defendants in the eyes of Illinois voters and the public at large.
The conduct of the Defendants was the proximate cause and substantial factor in causing Plaintiffs’ harm.
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Congress, in enacting the Corporation for Public Act, found that “it is necessary and appropriate for the Federal Government to complement, assist, and support a national policy that will most effectively make public telecommunications services available to all citizens of the United States” 47 U.S.C. 396 (a)(7).
The Plaintiffs – Rich Whitney, LeAlan Jones and the Green Party, as well as 361,000 citizens of the State of Illinois who voted for Mr. Whitney in 2006 – have been denied public telecommunications services, in violation of 47 U.S.C. 396 (a)(7) and the national policy promulgated thereby.
Additionally, pursuant to the announced national policy, the Act requires that the CPB, and its subsidiaries such as PBS and WTTW, operate in the public interest.
More specifically, in subsection (f), “Nonprofit and nonpolitical nature of the Corporation,” the Act requires that “The Corporation may not contribute to or otherwise support any political party or candidate for elective public office.” 47 U.S.C. 396 (f)(3).
Defendants’ refusal to include Plaintiffs in their debates and political forum constitutes an overt, express and substantial promotion, contribution, and support for the Democratic and Republican parties and their candidates and ideas, individually and together.
Defendants’ refusal to include Plaintiffs constitutes promotion of the so-called “two-party system,” and opposition to more than two established political parties, which has no legal justification or status; on the contrary, the Illinois Election Code and Illinois Constitution allow for the simultaneous existence and operation of more than two political parties in Illinois.
Defendants’ refusal to include Plaintiffs confers an unjustified imprimatur of legitimacy and endorsement of the Democratic and Republican parties and their candidates, and wrongly and improperly conveys to the public an aura of illegitimacy on the Green Party, its candidates and platform.
Plaintiffs have been damaged thereby, including but not limited to loss of opportunity to equally address the voters of Illinois, apparent opposition by civic leaders and publicly funded broadcasters in the Chicago land area, the false and unfounded perception advanced by the Defendants that Plaintiffs are somehow not legally qualified for office, and otherwise publicly opposed by Defendants in the eyes of Illinois voters and the public at large.
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This Count lies against Daniel J. Schmidt, as officer of WTTW, a member of the Public Broadcasting System and recipient of funds from the Corporation for Public Broadcasting.
All of the above-described wrongful acts served to deny Plaintiffs their rights guaranteed under the U.S. Constitution and State of Illinois Constitution.
WTTW is a member and holds equity in the Public Broadcasting System.
Historically, the Corporation for Public Broadcasting has received 15% to 20% of its annual operating revenue from Federal sources and 25% to 29% from State and local taxes.
More specifically, revenue sources for public television and radio in the United States is sourced thusly: Subscribers, Business, CPB Appropriation, State Governments, All Other, State Colleges and Universities, Foundations, Local Governments, Federal Grants and Contracts, Private Colleges and Universities, Other Colleges and Universities.
Of the above categories, non-tax based, private sources (Business, Foundations, Private Colleges and Universities) account for 24.6% of funding.
Therefore, over 75% is paid for by the public, or as PBS itself acknowledges, “Viewers like You”, either through taxes or subscription or other means, like promotional auctions held on PBS affiliates.
Thus, Defendant Schmidt’s position is funded by the public, in that it is dependent on public funds, state and federal, for its continued viability.
Defendant Schmidt’s position involves administering the national policy announced in the Corporation for Public Broadcasting Act.
Defendant Schmidt therefore, is a government actor for purposes of this lawsuit.
Thus, when Defendant Schmidt barred the Green Party, its candidates and ideas, and excluded the Plaintiffs from WTTW’s debate and political forum, Defendant Schmidt acted under color of law.
When Defendant Schmidt violated the Internal Revenue Code, the Communications Act of 1934, and the Corporation for Public Broadcasting Act, as described supra, by excluding Plaintiffs from WTTW’s debate and political forum, he purposefully deprived the Plaintiffs of Due Process and Equal Protection under the Fifth Amendment.
The Fifth Amendment, while not containing an express Equal Protection clause, has been found to incorporate Equal Protection principles. See Bolling v. Sharpe 347 U.S. 497 (1954).
The First Amendment guarantees a citizen’s right to freedom of speech.
When Defendant Schmidt barred the Green Party, its candidates and ideas, and excluded the Plaintiffs from WTTW’s debate and political forum, Defendant Schmidt purposefully retaliated against Plaintiffs for their protected speech.
Plaintiffs were proximately harmed thereby, including but not limited to loss of opportunity to equally address the voters of Illinois, apparent opposition by civic leaders and publicly funded broadcasters in the Chicago land area, the false and unfounded perception advanced by the Defendants that Plaintiffs are somehow not legally qualified for office, and otherwise publicly opposed by Defendants in the eyes of Illinois voters and the public at large.
The conduct of the defendants was the proximate cause and substantial factor in causing Plaintiffs’ harm.
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Comments welcome.
Posted on November 5, 2010