186 Misc. 553 | N.Y. Sup. Ct. | 1945
Plaintiff alleges that on October 18, 1945, he entered into a contract with the radio broadcasting station WSAY whereby in consideration of $112 it agreed to transmit two fifteen-minute political broadcasts on the afternoons of Sunday, October 28th, and Sunday, November 4,1945. The contract contained the following provision: “ Copy of talks must be submitted to WSAY at least three days prior to broadcast dates. All material subject to approval of station manager.” On October 25th, plaintiff submitted to this station the script for his proposed October 28th broadcast. The following day, on October 26th, plaintiff Rose was informed on the telephone by Harland M. Evans on behalf of the station according to Rose’s affidavit “ that because of the fact plaintiff did not represent a legal party electing candidates that the defendants would have to cancel the broadcast.” Concerning this conversation Evans’ affidavit states that he told' Rose “ that the script was not acceptable; that it was not a legal political party, supported no candidate for office, and that he wanted to give him the money back which was left together with the script the day before.” It thus appears that both affidavits are in substantial accord that the reason assigned by the station for refusing to make this broadcast was that the “ Labor and Liberal Committee ” for
The plaintiff is applying for a temporary injunction on account of the time element due to the circumstance that by the time when the action becomes at issue and is brought to trial the dates set for these broadcasts will have long since gone by, and the issue will have become academic.
It is assumed for the purpose of this motion that except insofar as it shall bind itself by contract a radio broadcasting station has the right to select what programs it will transmit and may reject such as it chooses provided only that the Federal Communications Act (Act, § 315; U. S. Code, tit. 47, § 315) respecting broadcasts by candidates for public office be not violated (Sta-Shine Products Co. v. Station WGBB, 188 I. C. C. 271; Summit Hotel Co. v. National Broadc’st’g Co., Aplnt., 336 Pa. 182; Dill on Radio Law, pp. 104-105).
In this case there is a contract with WSAY in force signed “ Labor and Liberal Committee by Angelo A. Bose Besponsible Individual or Agency ”, the consideration for which has been paid, requiring the station to make the broadcast on condition that the material to be transmitted is approved by the station manager. Plaintiff contends that this clause in the contract did not give to the station an arbitrary right to cancel the contract, that if the station did not want to allot radio time to others than legally constituted political parties that was something on which it should have made up its mind before signing the contract, that by placing its rejection upon this ground alone the station has waived the right to object to the script in other respects, and that it is in reality using that clause in the contract as a pretext for the cancellation of a contract which it now regrets having made. WSAY has contended upon the argument of the motion that the material for the proposed broadcast may be slanderous and is unsuitable.
Mandatory injunctions compelling specific performance of radio broadcasting contracts will be granted where the circumstances warrant (Churchill Evangelistic Assn., Inc., v. Columbia B. S., Inc., 142 Misc. 210, affd. 236 App. Div. 624). Mandatory injunctions will be granted pendente lite where irreparable injury will otherwise result to the claimant (7 Carmody on New York Pleading and Practice, § 183; Bachman v. Harrington, 184 N. Y. 458). The situation is somewhat analogous to compelling a newspaper to insert advertisements for which space has been contracted (Humphreys Mfg. Co. v. Williams Co., 70 Misc. 354).
It is the conclusion of this court that under the contract in suit station WSAY could not utilize its privilege of approval of copy for the broadcast arbitrarily in order to cancel the contract. If it rejected plaintiff’s script, it was obliged to have a reasonable basis for doing so and to inform plaintiff thereof. The fact that the “ Labor and Liberal Committee ”, for which plaintiff acted, was not a duly constituted political party did not furnish a reasonable basis on which to reject the script, not to mention on which to cancel the contract. The copy for the broadcast, which has been annexed to the answering affidavits, indicates that the broadcast is political in nature, but the defendants knew that the type of program was to be political because it is so stated in the contract. If WSAY did not wish to contract for that type of program with Mr. Rose on behalf of this group, which the defendants should have known was not a political party since that was a matter of public record, the station should not have entered into such a contractual obligation. Upon the argument, as has been stated, counsel contended that portions of the proposed broadcast were of such nature as perhaps to open the broadcasting station to suits for libel or slander. Such an objection, if substantiated, would, of course, be a sufficient ground on which to reject the copy for the broadcast, although plaintiff should have been informed of the respects in which it is claimed that the broadcast might be construed to be libelous or slanderous. That would appear to be one object of the provision in the contract requiring a copy of talks to be submitted three days prior to broadcast dates, in order that defects of that nature might be corrected if possible. Oppor
The court is nevertheless of opinion that the station should not be compelled to transmit this Sunday’s program if any part of it could reasonably be construed as opening the door to suits against it for slander or libel. In considering that phase of the case it is necessary to remember that to comment upon the acts or conduct of a public man is the right of every citizen (Duffy v. New York Evening Post Co., 109 App. Div. 471), that fair comment is permitted upon facts truly stated on matters of public interest and concern (Foley v. Press Publishing Co., 226 App. Div. 535) and that published conclusions drawn from facts, in order to escape being actionable, need not be the necessary conclusions from such facts. It is sufficient if the facts form a reasonable basis for such conclusions and the comments and criticism connected therewith (Howarth v. Barlow, 113 App. Div. 510; Cortright v. Anderson, 208 App. Div. 1).
Tested by these standards, it does not appear to the court that the proposed broadcast is libelous or slanderous per se. The defendants have presented nothing to indicate that it is actionable by reason of extrinsic facts. Where adverse characterizations are drawn respecting individuals who are either in public positions, running for public office or engaged in activities claimed to be tinged with a public interest, these characterizations or conclusions are set forth as being drawn by Mr. Rose honestly from facts stated. They are not the only conclusions which can be drawn, but it seems that he is entitled to draw them under the rule above stated without involving the station in liability if it publishes them. Whether it is good policy for the station to transmit a political broadcast from that source is something it ought to have considered before entering into the contract.
■ A point which has given the court some concern is the circumstance that the summons and complaint and order to show cause have not been delivered to the defendant Gordon P. Brown
Plaintiff signed the contract, as has been stated, on behalf of “ Labor and Liberal Committee ”, an unincorporated association, and it would have been better practice if his complaint had stated in the title that he commenced the action in its behalf. Nevertheless, section 12 of the General Associations Law specifies that an action or special proceeding may be maintained by the president or treasurer of an unincorporated association upon any cause of action which could be maintained by all of the associates. That section evidently contemplates that such actions shall be brought in the name of the individual who is president or treasurer, and so long as it appears from the body of the papers submitted, as it does in this instance, that the action is brought in the interest of the unincorporated association, it is not deemed to be a fatal defect that the association is not referred to in the title of the action. In the contract Bose is described as the “ responsible individual or agency ” for this committee, and it was he who acted as treasurer in paying the money to the station. It is held that the action is properly brought under the General Associations Law.
The prayer of the plaintiff for a temporary mandatory injunction to deliver this talk in accordance with his contract with the radio station is granted.