Whitney, Jones, Illinois Green Party vs. Window To The World Communications, Inc. (a/k/a WTTW-11), Daniel Schmidt, Mary Field
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 1 of 17 PageID #:76IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISIONRich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, Mary FieldLawsuit filed by Green Party and its candidates excluded from debates by publicly funded television station in Chicago, Illinois.
Content
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 1 of 17 PageID #:76
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
FIRST AMENDED COMPLAINT
NOW COME the Plaintiffs, Illinois Green Party, Rich Whitney, and LeAlan Jones, complaining of the Defendants, Window To The World Communications, Inc., Daniel J. Smith, President and CEO, and Mary Field, Executive Producer of Chicago Tonight (hereinafter WTTW defendants) for their wrongful and unlawful denial of Plaintiffs’ rights of free speech, assembly, and association and access to the public airwaves and public broadcast media; for their wrongful and unlawful acts resulting in stigma and injury to the individual Plaintiffs’ reputation and good name; and for their wrongful and unlawful acts interfering with the individual Plaintiffs’ right to pursue public service and employment, all in violation of the First, Fifth, and Fourteenth Amendments of the Constitution of the United States. PARTIES
1
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 2 of 17 PageID #:77
The Plaintiffs 1. The Illinois Green Party is a political organization comprised of Illinois citizens who, inter alia, nominate and support candidates for elected public office. 2. Rich Whitney was the Green Party candidate for Governor of Illinois in the November 2, 2010 election. He was on the ballot throughout the State of Illinois, subject to the provisions of the Illinois Election Code, 10 ILCS §5/1-1 et seq. 3. Mr. Whitney, as the Green Party candidate for Governor of Illinois, received over 361,000 votes (or 11% of the votes) for Governor in the statewide election held in November 2006. That achievement allowed the Illinois Green Party to be recognized as an “established political party” under the Illinois Election Code. 4. LeAlan Jones was the Green Party candidate for United States Senator from Illinois, and was on the ballot throughout the State of Illinois pursuant to the provisions of the Illinois Election Code. The WTTW Defendants 5. Defendant Window To The World Communications, Inc., formerly known as Chicago Educational Television Association (hereinafter “WTTW”) is a non-profit corporation that operates, inter alia, a public broadcasting television station in Chicago; Daniel J. Schmidt is, upon knowledge and belief, President of the Board of Directors and CEO of WTTW; he is designated on Illinois Secretary of State filings as WTTW’s Registered Agent.
2
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 3 of 17 PageID #:78
6. Mary Field is an employee and agent of WTTW, and holds the title of Executive Producer for the Chicago Tonight program which is broadcast on WTTW. Mary Field is the person who communicated to the Plaintiffs that they would be barred from the debates held for the Democratic and Republican nominees for Governor and United States Senator in October, 2010. 7. The precise extent of other persons’ involvement in the decision to bar Plaintiffs, their participation and their interrelatedness is exclusively and peculiarly within their knowledge of the named Defendants; and Plaintiffs request discovery on this issue. 8. WTTW is also recognized as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code and pays no Federal or state income taxes. 9. WTTW holds a non-commercial educational license issued by the Federal Communication Commission, and is subject to the regulations of the Federal Communications Act. 10. WTTW’s offices, broadcasting equipment and studios, and parking lot are all located on property owned by the State of Illinois. 11. WTTW receives funds from the Corporation for Public Broadcasting (hereinafter “CPB”), the United States Department of Education, the State of Illinois, and private citizens and entities.
3
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 4 of 17 PageID #:79
JURISDICTION AND VENUE 12. This Court has jurisdiction over this matter pursuant to the Federal Question statute, 28 U.S.C. §1331, and Art. III, §2, U.S. Constitution. 13. This Court has supplemental jurisdiction over any state claims pursuant to 28 U.S.C. §1367. 14. Venue is appropriate because all of the events complained of took place in the Northern District of Illinois. PUBLIC BROADCASTING IN THE UNITED STATES 15. Public broadcasting in the United States is governed, administered, and funded by and through the Corporation for Public Broadcasting Act. 47 U.S.C. § 396 et seq. (hereinafter "CPB Act") 16. The Congressional declaration of policy states: The Congress hereby finds and declares that-
1. it is in the public interest to encourage the growth and development of public radio and television broadcasting, including the use of such media for instructional, educational, and cultural purposes; 2. it is in the public interest to encourage the growth and development of nonbroadcast telecommunications technologies for the delivery of public telecommunications services; 3. expansion and development of public telecommunications and of diversity of its programming depend on freedom, imagination, and initiative on both local and national levels;
4
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 5 of 17 PageID #:80
4. the encouragement and support of public telecommunications, while matters of importance for private and local development, are also of appropriate and important concern to the Federal Government; 5. it furthers the general welfare to encourage public telecommunications services which will be responsive to the interests of people both in particular localities and throughout the United States, which will constitute an expression of diversity and excellence, and which will constitute a source of alternative telecommunications services for all the citizens of the Nation; 6. it is in the public interest to encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, particularly children and minorities; 7. 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; 8. public television and radio stations and public telecommunications services constitute valuable local community resources for utilizing electronic media to address national concerns and solve local problems through community programs and outreach programs; 9. it is in the public interest for the Federal Government to ensure that all citizens of the United States have access to public telecommunications services through all appropriate available telecommunications distribution technologies; and 10. a private corporation should be created to facilitate the development of public telecommunications and to afford maximum protection from extraneous interference and control. 47 U.S.C. § 396 (a)(1)-(10). 17. The CPB Act establishes a nonprofit corporation which, according to the Act, will not be an agency or establishment of the United States Government. 47 U.S.C. § 396(b). 18. The Corporation for Public Broadcasting characterizes itself as “A Private Corporation Funded by the American People.” See http://www.cpb.org (visited April 5, 2011).
5
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 6 of 17 PageID #:81
19. The CPB's 9-member Board of Directors is appointed by the President for six year terms, with the advice and consent of the Senate. 47 U.S.C. § 396 (c)(1). 20. The CPB Act regulates the compensation paid to Board members, officers, and employees. 47 U.S.C. § (d)&(e). 21. The Act characterizes the nature of the CPB as "nonprofit and nonpolitical" and 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). 22. In order to carry out the Congressional policy announced in §396(a)(1)-(10), the CPB is authorized to obtain grants from private, State, and Federal agencies, and make grants to public telecommunications entities like WTTW. 47 U.S.C. § 396 (g)(2). 23. The CPB Act establishes in the U.S. Treasury a "Public Broadcasting Fund" that allocates federal funds to the CPB. 47 U.S.C. § 396 (k)(1). 24. The CPB in turn makes a basic grant to each licensee and permittee of a public television station that is on the air. In addition to the basic grant, the CPB distributes additional funds to licensees and permittees pursuant to eligibility criteria which, inter alia, promotes the public interest in public broadcasting. 47 U.S.C. § 396 (k)(6)(B). 25. Grant making and grant eligibility criteria does not distinguish between state-owned and non-profit broadcast entities, other than to exempt state-owned broadcast entities from maintaining advisory boards. See 47 U.S.C § 396 (k)(8)(a).
6
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 7 of 17 PageID #:82
26. The CPB Act provides that "No noncommercial educational broadcasting station may support or oppose any candidate for political office." 47 U.S.C. §399. 27. Under the CPB Act, public broadcast stations may not advertise “to express the views of any person with respect to any matter of public importance or interest” or "to support or oppose any candidate for political office." 47 U.S.C. §399b(a)(2)&(3). 28. According to CPB material disseminated to the public, “public broadcasting services … champion the principles of diversity and excellence of programming, responsiveness to local communities, and service to all” and “Upon creation of CPB more than 40 years ago, these local public radio and television stations were joined by public broadcasting’s national organizations and many other entities supporting their efforts to promote those goals.” Emphasis supplied. See http://www.cpb.org/aboutpb/ (visited April 3, 2011). 29. Therefore WTTW is “joined” to, empowered by, administered, governed, and funded by and through the CPB Act, WTTW is vested with discretion and obligated to carry out Congressional policy under the Act, and WTTW’s acts are fairly attributable to the the United States. 30. In the alternative, WTTW and the United States and/or WTTW and the State of Illinois have symbiotic relationships; a close or joint nexus; or are otherwise pervasively entwined and possess an overlapping identity; or, WTTW carries out a public function as declared in the CPB Act.
7
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 8 of 17 PageID #:83
31. Additionally, by holding itself out as “public”, “noncommercial”, “educational”, “nonprofit” WTTW subjects itself to the strictures prohibiting political advocacy and mandating political neutrality in the CPB Act and at least two other Acts: Internal Revenue Code 32. 26 U.S.C. §501(c)(3), establishes and describes the requirements for one category of taxexempt organization, and reads in toto: (3) 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. 33. IRS guidance has established that a debate or forum that shows a preference for or against a certain candidate or a political party constitutes a prohibited activity under Subchapter F. 34. Thus, tax-exempt organizations are prohibited from any activities that may be beneficial or detrimental to any candidate or party. 35. 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; it may not indicate any support or opposition to any candidate.
8
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 9 of 17 PageID #:84
FCC Code 36. The Communications Act of 1934 47 U.S.C. §151 et seq. regulates and establishes licensing requirements for broadcast radio and television stations. 37. 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). 38. Section 312 of the Act provides for administrative sanctions, including revocation of license, for licensees that breach their obligation to operate in the public interest. 47 U.S.C. § 312. 39. More specifically, section 312 (a)(7) establishes the equitable principle of fairness among candidates and requires equal access by prohibiting “willful or repeated failure to allow Federal elective office on behalf of his candidacy.” Id. FACTS COMMON TO ALL COUNTS 40. In recent years, WTTW has broadcast debates between and among candidates for political office in its broadcast area, including candidates for Illinois Governor, United States Senator, and other elective offices. 41. Television broadcasts which simultaneously feature competing candidates provide a unique content that viewers are more likely to find engaging than segments featuring individual candidates without competing viewpoints.
9
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 10 of 17 PageID #:85
42. Accordingly, in October 2010 WTTW promoted, broadcast, and otherwise disseminated debates between the Gubernatorial and Senate candidates. 43. In the United States, voting and candidacy requirements are determined by state law, subject to Constitutional bounds; accordingly, elections in Illinois are governed by the Illinois Election Code, 10 ILCS §5/1-1, et seq. 44. Under the Illinois Election Code, “A political party which, at the last general election for State and county officers, polled for its candidate for Governor more than 5% of the entire vote cast for Governor, is hereby declared to be an "established political party" as to the State and as to any district or political subdivision thereof. A political party which, at the last election in any congressional district, legislative district, county, township, municipality or other political subdivision or district in the State, polled more than 5% of the entire vote cast within such territorial area or political subdivision, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision, is hereby declared to be an "established political party" within the meaning of this Article as to such district or political subdivision.” 10 ILCS §5/10-2. 45. This alleviates many of the burdens of nominating candidates, including signature collections, for “minor political parties” the term used under the Code for those parties having not yet achieved established status. See 10 ILCS §5/10-1. 46. Because candidate Whitney received over 361,000 votes in the 2006 election, the Green Party was recognized under Illinois law as an established political party, on equal footing with other established political parties. 47. Despite the fact that the Green Party enjoyed a status under the Election Code as an “established political party” WTTW did not invite candidate Whitney or candidate
10
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 11 of 17 PageID #:86
Jones to participate in the political debates it promoted, broadcast and otherwise disseminated. 48. Counsel for the Green Party sent letters to, inter alia, WTTW production staff, including Mary Field, as well as to WTTW CEO, Daniel J. Schmidt, requesting that Green Party candidates be allowed to fully participate in the debates, referencing the provisions of the FCC Act and IRS Act. 49. 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, in violation of its status as a 501(c)(3) tax-exempt entity under the Internal Revenue Act and in violation of the equal access requirements of the Communications Act of 1934. 50. Counsel for the Green Party offered in October 2010 settle and resolve all disputes and grievances against WTTW, if WTTW would simply agree to allow Green Party candidate Rich Whitney equal and unfettered access to the debate scheduled for October 28, 2010, and provide similar equal treatment with regard to future debates. 51. Despite the Plaintiffs’ best efforts to resolve this matter, WTTW willfully and intentionally refused to reconsider its position, and this lawsuit ensued. COUNT I – FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION
52. Plaintiffs’ incorporate paragraphs 1-51.
11
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 12 of 17 PageID #:87
53. The First Amendment guarantees a citizen's, candidates’ and political party's right to freedom of speech. 54. Political speech is central to the First Amendment’s meaning and purpose. 55. Political speech is of primary importance to the integrity of the election process. 56. The debates held by WTTW were by design forums for political speech by the candidates. 57. The implicit representation of WTTW was that the views expressed were those of the candidates, not WTTW’s. 58. The purpose of the debates was to allow the candidates to express their views in comparison and contrast to other candidates. 59. It is important that candidates have the opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them. 60. When WTTW barred the Green Party, its candidates and ideas, and excluded the Plaintiffs from its debate and political forum, it purposefully discriminated against and retaliated against Plaintiffs for their protected speech. 61. Plaintiffs were damaged thereby. 62. The First Amendment guarantees a citizen’s, candidates’ and political party's right to assemble.
12
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 13 of 17 PageID #:88
63. The Green Party, its candidates and ideas, were denied an opportunity to peacefully assemble, on State Property, with other established political parties and their candidates. 64. Plaintiffs were damaged thereby. 65. The First Amendment guarantees citizens, candidates and political parties the right to associate; specifically the right of individuals to associate for the advancement of political beliefs; and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. 66. By barring the Green Party and its candidates and ideas, WTTW denied qualified voters the opportunity to hear, be persuaded, advance or alter their political beliefs, and effectively cast their votes. 67. By barring the Green Party and its candidates and ideas, WTTW has impaired lawful ballot access to the Plaintiffs. 68. Plaintiffs were damaged thereby. COUNT II- THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION 69. Plaintiffs incorporate paragraphs 1-68. 70. WTTW defendants are obligated, when determining who to include in political debates, to afford citizens due process and equal protection under the law. 71. The Green Party’s candidates have the right to pursue public service and public employment.
13
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 14 of 17 PageID #:89
72. The Green Party’s candidates achieved a status under state law equal to those of the candidates included in the debate. 73. The WTTW defendants’ determination to exclude the Green Party, its candidates and ideas, purposefully disregarded that status; that determination had serious consequences to the Green Party and its candidates. 74. The WTTW defendants’ refusal to include Plaintiffs unquestionably influences the public discourse and intervenes in the associated political campaigns. 75. The WTTW defendants’ refusal to include Plaintiffs inures to the benefit of, and is on behalf of, the included candidates. 76. The WTTW defendants’ refusal to include Plaintiffs constitutes acceptance, promotion and propagandizement of the so-called “two-party system”, which has no legal justification or status. 77. The WTTW defendants’ refusal to include Plaintiffs confers an unjustified imprimatur of legitimacy on the Democratic and Republican parties and their candidates, and conveys/transmits to the public an aura or taint of illegitimacy on the Green Party, its candidates and ideas. 78. The reinforcement of this corrupt and illegitimate “system” by the WTTW defendants, persons and entities legally obligated to operate in the public interest, impermissibly influences the legislative process which should be the purview of the People.
14
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 15 of 17 PageID #:90
79. Plaintiffs have been injured in their reputation and good name, injured in the pursuit of public service and employment, blacklisted, and stigmatized by defendants’ wrongful acts. 80. Plaintiffs have been damaged thereby. THEREFORE, Plaintiffs pray this Honorable Court: • To Enjoin the Defendants, and Each of Them, from the Continued Wrongful Acts
of Denying Plaintiffs access to their political forums and debates• • • To Award Damages in an Amount to be Proved at TrialTo Award Attorneys Fees and Costs of SuitAll other Relief that this Honorable Court Deems Just. Respectfully submitted: By: _____/s/_________________________________ Christopher D. Kruger, counsel for Plaintiffs
Date: April 5, 2011
Christopher D. Kruger THE LAW OFFICES OF CHRISTOPHER KRUGER 2022 Dodge Avenue Evanston, IL 60201 Tel: (847) 420 1763 Fax: (847) 733-9537 Christopher C. Cooper 3620 West 80th Lane Merrillville, IN 46410 Tel: (312) 371-6752 Fax: (219) 228-4396 Andrew Finko P.O. Box 2249 Chicago, IL 60690-2249 Tel: (773) 480-0616 Fax: (773) 453-2366
15
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 16 of 17 PageID #:91
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that he caused a copy of the foregoing Plaintiffs' First Amended Complaint to be served upon the counsel of record shown upon the attached Service List by ECF electronic mail service on April 5, 2011.
Date: April 5, 2011 _____/s/_________________________________ Christopher D. Kruger, counsel for Plaintiffs
Christopher D. Kruger THE LAW OFFICES OF CHRISTOPHER KRUGER 2022 Dodge Avenue Evanston, IL 60201 Tel: (847) 420 1763 Fax: (847) 733-9537 Email: [email protected] Christopher C. Cooper 3620 West 80th Lane Merrillville, IN 46410 Tel: (312) 371-6752 Fax: (219) 228-4396 Andrew Finko P.O. Box 2249 Chicago, IL 60690-2249 Tel: (773) 480-0616 Fax: (773) 453-2366
Email: [email protected]
Email: [email protected]
16
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 17 of 17 PageID #:92
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
Service List Counsel for Defendant, Corporation for Public Broadcasting David Doyle Joshua Dunn Vedder Price P.C. 222 North LaSalle Street Chicago, Illinois 60601
Counsel for Defendants, Window To The World Communications, Inc. a/k/a WTTW-11 Chicago and Daniel Schmidt Richard O'Brien Linda Friedlieb Robert Leighton Sidley Austin LLP One South Dearborn Street Chicago, Illinois 60603
17
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
FIRST AMENDED COMPLAINT
NOW COME the Plaintiffs, Illinois Green Party, Rich Whitney, and LeAlan Jones, complaining of the Defendants, Window To The World Communications, Inc., Daniel J. Smith, President and CEO, and Mary Field, Executive Producer of Chicago Tonight (hereinafter WTTW defendants) for their wrongful and unlawful denial of Plaintiffs’ rights of free speech, assembly, and association and access to the public airwaves and public broadcast media; for their wrongful and unlawful acts resulting in stigma and injury to the individual Plaintiffs’ reputation and good name; and for their wrongful and unlawful acts interfering with the individual Plaintiffs’ right to pursue public service and employment, all in violation of the First, Fifth, and Fourteenth Amendments of the Constitution of the United States. PARTIES
1
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 2 of 17 PageID #:77
The Plaintiffs 1. The Illinois Green Party is a political organization comprised of Illinois citizens who, inter alia, nominate and support candidates for elected public office. 2. Rich Whitney was the Green Party candidate for Governor of Illinois in the November 2, 2010 election. He was on the ballot throughout the State of Illinois, subject to the provisions of the Illinois Election Code, 10 ILCS §5/1-1 et seq. 3. Mr. Whitney, as the Green Party candidate for Governor of Illinois, received over 361,000 votes (or 11% of the votes) for Governor in the statewide election held in November 2006. That achievement allowed the Illinois Green Party to be recognized as an “established political party” under the Illinois Election Code. 4. LeAlan Jones was the Green Party candidate for United States Senator from Illinois, and was on the ballot throughout the State of Illinois pursuant to the provisions of the Illinois Election Code. The WTTW Defendants 5. Defendant Window To The World Communications, Inc., formerly known as Chicago Educational Television Association (hereinafter “WTTW”) is a non-profit corporation that operates, inter alia, a public broadcasting television station in Chicago; Daniel J. Schmidt is, upon knowledge and belief, President of the Board of Directors and CEO of WTTW; he is designated on Illinois Secretary of State filings as WTTW’s Registered Agent.
2
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 3 of 17 PageID #:78
6. Mary Field is an employee and agent of WTTW, and holds the title of Executive Producer for the Chicago Tonight program which is broadcast on WTTW. Mary Field is the person who communicated to the Plaintiffs that they would be barred from the debates held for the Democratic and Republican nominees for Governor and United States Senator in October, 2010. 7. The precise extent of other persons’ involvement in the decision to bar Plaintiffs, their participation and their interrelatedness is exclusively and peculiarly within their knowledge of the named Defendants; and Plaintiffs request discovery on this issue. 8. WTTW is also recognized as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code and pays no Federal or state income taxes. 9. WTTW holds a non-commercial educational license issued by the Federal Communication Commission, and is subject to the regulations of the Federal Communications Act. 10. WTTW’s offices, broadcasting equipment and studios, and parking lot are all located on property owned by the State of Illinois. 11. WTTW receives funds from the Corporation for Public Broadcasting (hereinafter “CPB”), the United States Department of Education, the State of Illinois, and private citizens and entities.
3
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 4 of 17 PageID #:79
JURISDICTION AND VENUE 12. This Court has jurisdiction over this matter pursuant to the Federal Question statute, 28 U.S.C. §1331, and Art. III, §2, U.S. Constitution. 13. This Court has supplemental jurisdiction over any state claims pursuant to 28 U.S.C. §1367. 14. Venue is appropriate because all of the events complained of took place in the Northern District of Illinois. PUBLIC BROADCASTING IN THE UNITED STATES 15. Public broadcasting in the United States is governed, administered, and funded by and through the Corporation for Public Broadcasting Act. 47 U.S.C. § 396 et seq. (hereinafter "CPB Act") 16. The Congressional declaration of policy states: The Congress hereby finds and declares that-
1. it is in the public interest to encourage the growth and development of public radio and television broadcasting, including the use of such media for instructional, educational, and cultural purposes; 2. it is in the public interest to encourage the growth and development of nonbroadcast telecommunications technologies for the delivery of public telecommunications services; 3. expansion and development of public telecommunications and of diversity of its programming depend on freedom, imagination, and initiative on both local and national levels;
4
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 5 of 17 PageID #:80
4. the encouragement and support of public telecommunications, while matters of importance for private and local development, are also of appropriate and important concern to the Federal Government; 5. it furthers the general welfare to encourage public telecommunications services which will be responsive to the interests of people both in particular localities and throughout the United States, which will constitute an expression of diversity and excellence, and which will constitute a source of alternative telecommunications services for all the citizens of the Nation; 6. it is in the public interest to encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, particularly children and minorities; 7. 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; 8. public television and radio stations and public telecommunications services constitute valuable local community resources for utilizing electronic media to address national concerns and solve local problems through community programs and outreach programs; 9. it is in the public interest for the Federal Government to ensure that all citizens of the United States have access to public telecommunications services through all appropriate available telecommunications distribution technologies; and 10. a private corporation should be created to facilitate the development of public telecommunications and to afford maximum protection from extraneous interference and control. 47 U.S.C. § 396 (a)(1)-(10). 17. The CPB Act establishes a nonprofit corporation which, according to the Act, will not be an agency or establishment of the United States Government. 47 U.S.C. § 396(b). 18. The Corporation for Public Broadcasting characterizes itself as “A Private Corporation Funded by the American People.” See http://www.cpb.org (visited April 5, 2011).
5
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 6 of 17 PageID #:81
19. The CPB's 9-member Board of Directors is appointed by the President for six year terms, with the advice and consent of the Senate. 47 U.S.C. § 396 (c)(1). 20. The CPB Act regulates the compensation paid to Board members, officers, and employees. 47 U.S.C. § (d)&(e). 21. The Act characterizes the nature of the CPB as "nonprofit and nonpolitical" and 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). 22. In order to carry out the Congressional policy announced in §396(a)(1)-(10), the CPB is authorized to obtain grants from private, State, and Federal agencies, and make grants to public telecommunications entities like WTTW. 47 U.S.C. § 396 (g)(2). 23. The CPB Act establishes in the U.S. Treasury a "Public Broadcasting Fund" that allocates federal funds to the CPB. 47 U.S.C. § 396 (k)(1). 24. The CPB in turn makes a basic grant to each licensee and permittee of a public television station that is on the air. In addition to the basic grant, the CPB distributes additional funds to licensees and permittees pursuant to eligibility criteria which, inter alia, promotes the public interest in public broadcasting. 47 U.S.C. § 396 (k)(6)(B). 25. Grant making and grant eligibility criteria does not distinguish between state-owned and non-profit broadcast entities, other than to exempt state-owned broadcast entities from maintaining advisory boards. See 47 U.S.C § 396 (k)(8)(a).
6
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 7 of 17 PageID #:82
26. The CPB Act provides that "No noncommercial educational broadcasting station may support or oppose any candidate for political office." 47 U.S.C. §399. 27. Under the CPB Act, public broadcast stations may not advertise “to express the views of any person with respect to any matter of public importance or interest” or "to support or oppose any candidate for political office." 47 U.S.C. §399b(a)(2)&(3). 28. According to CPB material disseminated to the public, “public broadcasting services … champion the principles of diversity and excellence of programming, responsiveness to local communities, and service to all” and “Upon creation of CPB more than 40 years ago, these local public radio and television stations were joined by public broadcasting’s national organizations and many other entities supporting their efforts to promote those goals.” Emphasis supplied. See http://www.cpb.org/aboutpb/ (visited April 3, 2011). 29. Therefore WTTW is “joined” to, empowered by, administered, governed, and funded by and through the CPB Act, WTTW is vested with discretion and obligated to carry out Congressional policy under the Act, and WTTW’s acts are fairly attributable to the the United States. 30. In the alternative, WTTW and the United States and/or WTTW and the State of Illinois have symbiotic relationships; a close or joint nexus; or are otherwise pervasively entwined and possess an overlapping identity; or, WTTW carries out a public function as declared in the CPB Act.
7
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 8 of 17 PageID #:83
31. Additionally, by holding itself out as “public”, “noncommercial”, “educational”, “nonprofit” WTTW subjects itself to the strictures prohibiting political advocacy and mandating political neutrality in the CPB Act and at least two other Acts: Internal Revenue Code 32. 26 U.S.C. §501(c)(3), establishes and describes the requirements for one category of taxexempt organization, and reads in toto: (3) 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. 33. IRS guidance has established that a debate or forum that shows a preference for or against a certain candidate or a political party constitutes a prohibited activity under Subchapter F. 34. Thus, tax-exempt organizations are prohibited from any activities that may be beneficial or detrimental to any candidate or party. 35. 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; it may not indicate any support or opposition to any candidate.
8
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 9 of 17 PageID #:84
FCC Code 36. The Communications Act of 1934 47 U.S.C. §151 et seq. regulates and establishes licensing requirements for broadcast radio and television stations. 37. 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). 38. Section 312 of the Act provides for administrative sanctions, including revocation of license, for licensees that breach their obligation to operate in the public interest. 47 U.S.C. § 312. 39. More specifically, section 312 (a)(7) establishes the equitable principle of fairness among candidates and requires equal access by prohibiting “willful or repeated failure to allow Federal elective office on behalf of his candidacy.” Id. FACTS COMMON TO ALL COUNTS 40. In recent years, WTTW has broadcast debates between and among candidates for political office in its broadcast area, including candidates for Illinois Governor, United States Senator, and other elective offices. 41. Television broadcasts which simultaneously feature competing candidates provide a unique content that viewers are more likely to find engaging than segments featuring individual candidates without competing viewpoints.
9
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 10 of 17 PageID #:85
42. Accordingly, in October 2010 WTTW promoted, broadcast, and otherwise disseminated debates between the Gubernatorial and Senate candidates. 43. In the United States, voting and candidacy requirements are determined by state law, subject to Constitutional bounds; accordingly, elections in Illinois are governed by the Illinois Election Code, 10 ILCS §5/1-1, et seq. 44. Under the Illinois Election Code, “A political party which, at the last general election for State and county officers, polled for its candidate for Governor more than 5% of the entire vote cast for Governor, is hereby declared to be an "established political party" as to the State and as to any district or political subdivision thereof. A political party which, at the last election in any congressional district, legislative district, county, township, municipality or other political subdivision or district in the State, polled more than 5% of the entire vote cast within such territorial area or political subdivision, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision, is hereby declared to be an "established political party" within the meaning of this Article as to such district or political subdivision.” 10 ILCS §5/10-2. 45. This alleviates many of the burdens of nominating candidates, including signature collections, for “minor political parties” the term used under the Code for those parties having not yet achieved established status. See 10 ILCS §5/10-1. 46. Because candidate Whitney received over 361,000 votes in the 2006 election, the Green Party was recognized under Illinois law as an established political party, on equal footing with other established political parties. 47. Despite the fact that the Green Party enjoyed a status under the Election Code as an “established political party” WTTW did not invite candidate Whitney or candidate
10
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 11 of 17 PageID #:86
Jones to participate in the political debates it promoted, broadcast and otherwise disseminated. 48. Counsel for the Green Party sent letters to, inter alia, WTTW production staff, including Mary Field, as well as to WTTW CEO, Daniel J. Schmidt, requesting that Green Party candidates be allowed to fully participate in the debates, referencing the provisions of the FCC Act and IRS Act. 49. 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, in violation of its status as a 501(c)(3) tax-exempt entity under the Internal Revenue Act and in violation of the equal access requirements of the Communications Act of 1934. 50. Counsel for the Green Party offered in October 2010 settle and resolve all disputes and grievances against WTTW, if WTTW would simply agree to allow Green Party candidate Rich Whitney equal and unfettered access to the debate scheduled for October 28, 2010, and provide similar equal treatment with regard to future debates. 51. Despite the Plaintiffs’ best efforts to resolve this matter, WTTW willfully and intentionally refused to reconsider its position, and this lawsuit ensued. COUNT I – FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION
52. Plaintiffs’ incorporate paragraphs 1-51.
11
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 12 of 17 PageID #:87
53. The First Amendment guarantees a citizen's, candidates’ and political party's right to freedom of speech. 54. Political speech is central to the First Amendment’s meaning and purpose. 55. Political speech is of primary importance to the integrity of the election process. 56. The debates held by WTTW were by design forums for political speech by the candidates. 57. The implicit representation of WTTW was that the views expressed were those of the candidates, not WTTW’s. 58. The purpose of the debates was to allow the candidates to express their views in comparison and contrast to other candidates. 59. It is important that candidates have the opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them. 60. When WTTW barred the Green Party, its candidates and ideas, and excluded the Plaintiffs from its debate and political forum, it purposefully discriminated against and retaliated against Plaintiffs for their protected speech. 61. Plaintiffs were damaged thereby. 62. The First Amendment guarantees a citizen’s, candidates’ and political party's right to assemble.
12
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 13 of 17 PageID #:88
63. The Green Party, its candidates and ideas, were denied an opportunity to peacefully assemble, on State Property, with other established political parties and their candidates. 64. Plaintiffs were damaged thereby. 65. The First Amendment guarantees citizens, candidates and political parties the right to associate; specifically the right of individuals to associate for the advancement of political beliefs; and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. 66. By barring the Green Party and its candidates and ideas, WTTW denied qualified voters the opportunity to hear, be persuaded, advance or alter their political beliefs, and effectively cast their votes. 67. By barring the Green Party and its candidates and ideas, WTTW has impaired lawful ballot access to the Plaintiffs. 68. Plaintiffs were damaged thereby. COUNT II- THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION 69. Plaintiffs incorporate paragraphs 1-68. 70. WTTW defendants are obligated, when determining who to include in political debates, to afford citizens due process and equal protection under the law. 71. The Green Party’s candidates have the right to pursue public service and public employment.
13
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 14 of 17 PageID #:89
72. The Green Party’s candidates achieved a status under state law equal to those of the candidates included in the debate. 73. The WTTW defendants’ determination to exclude the Green Party, its candidates and ideas, purposefully disregarded that status; that determination had serious consequences to the Green Party and its candidates. 74. The WTTW defendants’ refusal to include Plaintiffs unquestionably influences the public discourse and intervenes in the associated political campaigns. 75. The WTTW defendants’ refusal to include Plaintiffs inures to the benefit of, and is on behalf of, the included candidates. 76. The WTTW defendants’ refusal to include Plaintiffs constitutes acceptance, promotion and propagandizement of the so-called “two-party system”, which has no legal justification or status. 77. The WTTW defendants’ refusal to include Plaintiffs confers an unjustified imprimatur of legitimacy on the Democratic and Republican parties and their candidates, and conveys/transmits to the public an aura or taint of illegitimacy on the Green Party, its candidates and ideas. 78. The reinforcement of this corrupt and illegitimate “system” by the WTTW defendants, persons and entities legally obligated to operate in the public interest, impermissibly influences the legislative process which should be the purview of the People.
14
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 15 of 17 PageID #:90
79. Plaintiffs have been injured in their reputation and good name, injured in the pursuit of public service and employment, blacklisted, and stigmatized by defendants’ wrongful acts. 80. Plaintiffs have been damaged thereby. THEREFORE, Plaintiffs pray this Honorable Court: • To Enjoin the Defendants, and Each of Them, from the Continued Wrongful Acts
of Denying Plaintiffs access to their political forums and debates• • • To Award Damages in an Amount to be Proved at TrialTo Award Attorneys Fees and Costs of SuitAll other Relief that this Honorable Court Deems Just. Respectfully submitted: By: _____/s/_________________________________ Christopher D. Kruger, counsel for Plaintiffs
Date: April 5, 2011
Christopher D. Kruger THE LAW OFFICES OF CHRISTOPHER KRUGER 2022 Dodge Avenue Evanston, IL 60201 Tel: (847) 420 1763 Fax: (847) 733-9537 Christopher C. Cooper 3620 West 80th Lane Merrillville, IN 46410 Tel: (312) 371-6752 Fax: (219) 228-4396 Andrew Finko P.O. Box 2249 Chicago, IL 60690-2249 Tel: (773) 480-0616 Fax: (773) 453-2366
15
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 16 of 17 PageID #:91
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that he caused a copy of the foregoing Plaintiffs' First Amended Complaint to be served upon the counsel of record shown upon the attached Service List by ECF electronic mail service on April 5, 2011.
Date: April 5, 2011 _____/s/_________________________________ Christopher D. Kruger, counsel for Plaintiffs
Christopher D. Kruger THE LAW OFFICES OF CHRISTOPHER KRUGER 2022 Dodge Avenue Evanston, IL 60201 Tel: (847) 420 1763 Fax: (847) 733-9537 Email: [email protected] Christopher C. Cooper 3620 West 80th Lane Merrillville, IN 46410 Tel: (312) 371-6752 Fax: (219) 228-4396 Andrew Finko P.O. Box 2249 Chicago, IL 60690-2249 Tel: (773) 480-0616 Fax: (773) 453-2366
Email: [email protected]
Email: [email protected]
16
Case: 1:10-cv-07003 Document #: 27 Filed: 04/05/11 Page 17 of 17 PageID #:92
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION Rich Whitney, Green Party candidate for Illinois Governor, LeAlan Jones, Green Party candidate for U.S. Senator from Illinois, Illinois Green Party, an established political party in Illinois, Plaintiffs, v. Window To The World Communications, Inc., a/k/a WTTW-11 Chicago, Daniel J. Schmidt, individually and in his professional capacities, and Mary Field, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Court No.: 2010-cv-7003 Honorable Robert W. Gettleman Magistrate Judge: Sidney Schenkier
Service List Counsel for Defendant, Corporation for Public Broadcasting David Doyle Joshua Dunn Vedder Price P.C. 222 North LaSalle Street Chicago, Illinois 60601
Counsel for Defendants, Window To The World Communications, Inc. a/k/a WTTW-11 Chicago and Daniel Schmidt Richard O'Brien Linda Friedlieb Robert Leighton Sidley Austin LLP One South Dearborn Street Chicago, Illinois 60603
17
