Gurfein and Van Graafeiland, Circuit Judges, and Coffrin, District Judge.
Statement made by the court at the disposition of the appeal in open court.
In view of the shortness of time, we will deliver an oral opinion subject to editing and corrections that may occur to us when we read the text. In the meantime, the opinion is being taken down on tape and will be available to counsel.
This is an appeal from an order of Judge Kevin Duffy dismissing the complaint and refusing to sign a temporary restraining order. The individual appellants are employees of the corporate appellant, AMERICAN BROADCASTING COMPANIES, INC. ("ABC"), and are part of its Eyewitness News Department. Respondents, the Honorable Mario Cuomo and the Honorable Edward Koch are the two remaining candidates in the primary runoff for Mayor of New York and the respondent Codd is the Police Commissioner of the City of New York.
This case arises out of a series of arrests and threats of arrests against persons affiliated with the individual appellants, with such threats actually being directed against some of the individual appellants by Messrs. Koch and Cuomo and the City Police Department (on September 8, the first day of the Democratic primary) who claimed trespass in violation of the criminal trespass law of New York, N.Y. Penal Law § 140.05 (McKinney 1975).
These threatened arrests occurred in various campaign facilities of the candidates in the primary. The matter has been aggravated by the circumstance that there is an ongoing collective bargaining dispute between the network, ABC, and the National Association of Broadcast Engineers and Technicians, known as "NABET", whose members have been on strike for some time. On September 8, apparently some of the NABET members picketed several of the headquarters of the Democratic candidates and engaged in other secondary activity for the purpose of causing the ABC management television crew, who were then inside the several campaign facilities by invitation of the candidates, to be ousted. ABC, we are told, has filed a complaint with the National Labor Relations Board charging unlawful secondary activity on the part of the union, but we are not concerned with that subject.
We do know that there have been threats that if the management crews of ABC try to enter or fail to leave the various premises of the candidates, they would be arrested.
Mr. Koch has indicated a belief, which Mr. Costikyan has indicated here again today, that if ABC is permitted to bring its management crew into the headquarters, the crews of CBS and NBC would leave and the networks would refuse to put in their own management crews. It is possible, of course, for ABC to send in movie crews who are not members of the NABET union but as they have pointed out in their affidavit, this would prevent a simultaneous broadcast of the activities which they film, since it would take several hours to process the movie film.
The question before us is whether Judge Duffy abused his discretion in refusing to restrain the Police Commissioner from enforcing the criminal trespass statute and from refusing to restrain Messrs. Koch and Cuomo from refusing access to the ABC management crew.
The first question presented as it has been given to us is whether a federal court should enjoin enforcement of a criminal statute which as applied interferes with First Amendment rights.
The Supreme Court held in Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1973), that a declaratory judgment was proper when a criminal prosecution for exercising a First Amendment right was threatened and the Court went further in Doran v. Salem Inn., Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975), by extending the declaratory judgment relief to injunctive relief. There is no question that irreparable harm will result if ABC is not permitted to broadcast live coverage of the post-election activities at the respective headquarters. We think that this would amount to irreparable injury, not only to ABC but to the public which views the events on its channel. Some of these viewers might be limited to a single channel, such as people in hospitals or other institutions who have a single channel to watch, and indeed the public generally would hardly know that they are being foreclosed, if they watch ABC, from seeing something that they could see if they switched to another station. And so we cover the first element required for a permanent injunction, namely, irreparable injury.
The second element would be whether there is likely chance of success upon a trial of a permanent injunction. This, in turn, requires the consideration of two questions. First, whether a First Amendment right is being violated; and secondly, whether there is sufficient state action to constitute a violation of the Civil Rights Act of 1871 and the Fourteenth Amendment as it applies the First Amendment to the states.
With respect to the constitutional free speech issue, the Police Commissioner takes the position that he is simply enforcing the statute. As far as the candidates are concerned, we have indicated the position of Mr. Koch and apparently, judging from the statement of his representative, Mr. Cuomo takes the ...