Case Law Suggests FCC Should Compel Stations to Run Terry’s Super Bowl Ads.
When Reading the Case Law below, reporters will understand the glaring comparison of “Negro” voters and candidates in Democratic Primaries in the 1940s, and Catholic voters of today.
Randall Terry for President
Date: February 2, 2012
To: Mr. Bobby Baker, FCC
From: Randall Terry, Democratic Candidate for President
Re: Refusal of NBC Chicago, and other NBC affiliates in the states of Missouri and Oklahoma to run campaign ads of a federal “legally qualified candidate” in accordance with FCC law.
Hello Mr. Baker, and staff at FCC.
I apologize in advance for any typos that may be present in this document; the requirement that this complaint be filed by 1:00 P.M. today (2/2/2012) may have resulted in a spelling or grammatical error or two.
That apology now made, I submit that what is at stake in this exact scenario is free elections.
I will make three major points in this short cry for justice:
- The Right of a “private club” such as the DNC is not absolute in general elections, primaries, and where public money is spent.
- The request of the DNC to preclude me from the Democratic National Convention, and their suggestion that stations not run my campaign ads is a content driven exclusion, and is therefore forbidden under Becker v. FCC, 95 F.3d 75 (DC Cir. 1996)
- That the right of voters and candidates in primaries cannot be infringed by Party bosses based on race or creed. The attempted efforts of the DNC are a violation of the fundamental rights of voters; and that violation emanates from the most sacred beliefs held by voters and candidates.
1) The Right of a “private club” such as the DNC is not absolute in general elections, primaries, and where public money is spent.
The DNC Executive Director stated in a letter dated January 27, 2012: “Mr. Terry is not a bona fide Democrat candidate or a representative of the Democrat National Committee.” And, “Mr. Terry’s claims to be a Democrat candidate for President are false. Accordingly, he should not be accorded the benefits of someone conducting a legitimate campaign for public office.”
This has resulted in NBC Chicago, and several stations in MO and OK — where I am legally on the ballot, and have met all requirements by law to be treated under FCC rules as a “legally qualified candidate” — cancelling my TV ads purchased to run during the Super Bowl
This is a violation of my rights as a candidate, and the rights of voters of the states of MO, OK, and IL.
In The United States vs. Classic, in a case very similar to this, the Court dealt with a case in which Negro voters were denied the right to participate in the primary for the election of federal congressmen. The Democrat Party in this case had constructed barriers to prohibit candidates and voters from enjoying free elections. The Supreme Court declared:
The charge, based on these allegations, was that the appellees conspired with each other, and with others unknown, to injure and oppress citizens in the free exercise and enjoyment of rights and privileges secured to them by the Constitution and Laws of the United States, namely, (1) the right of qualified voters who cast their ballots in the primary election to have their ballots counted as cast for the candidate of their choice, and (2) the right of the candidates to run for the office of Congressman and to have the votes in favor of their nomination counted as cast. UNITED STATES v. CLASSIC 313 U.S. 299 (1941) Supreme Court of United States.
This case clearly shows that in a federal primary, the Party may not impose its wishes on the electorate, or the candidates.
In a similar case before the Supreme Court, Smith vs. Allwright, the Court struck down a ruling of the State Supreme Court of Texas, that held that the Democratic Party of Texas was a “voluntary association.” (Bell v. Hill, 123 Tex. 531, 534, 545)
The Texas Court held that:
Since the right to organize and maintain a political party is one guaranteed by the Bill of Rights of this State, it necessarily follows that every privilege essential or reasonably appropriate to the exercise of that right is likewise guaranteed, — including, of course, the privilege of determining the policies of the party and its membership. Without the privilege of determining the policy of a political association and its membership, the right to organize such an association would be a mere mockery. (Quoted in Smith v Allwright)
This logic is very akin to the District Court Larouche ruling that NBC and others are using to say that the DNC — as a private club — can preclude me from fully participating in the Democratic primary of several states.
In Smith v Allwright the Supreme Court struck down the Texas ruling, citing Classic; they simultaneously expanded the rights of voters in primaries, and constricted the abilities of the Democrat Party to illegally effect participation in and outcome of primaries. They held that when the Party makes rules regarding primary elections, it is taking on the function of the state. Since the state cannot deny the right of voters and candidates to participate in primaries, therefore, neither can the Party. The Supreme Court said “…the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party’s action the action of the State.”
See Smith v Allwright at:
Based upon these decisions, future Supreme Court Justice Thurgood Marshall, and other attorneys in concert with him, brought suit in Federal District Court against the Democratic Party of South Carolina in Elmore vs. Rice (1947) and Brown vs. Baskin (1948) when the Party was prohibiting free participation in primaries. Again, both Elmore vs. Rice and Brown vs. Baskin — as in the Supreme Court cases ofCapitol and Allwright — the Court dealt with the Democratic Party inhibiting free participation inprimary elections.
Again, these two cases are very similar to the case at hand. The Democratic Party had constructed unconstitutional barriers to prohibit voters — and by extension any candidates for whom they might vote — from participating freely in the primary process. The Party did this under the argument that they were a “private club.”
In Elmore vs. Rice, the District Court Struck down the Democrat party theory that they were a “private club” based on Classic and Allwright. In Baskin, the Court referenced its Rice ruling stating:
… the sole reliance of the officials of the Democratic Party was upon the theory that it was a private organization and not subject to the general law. In the opinions in that case there was no particular effort to lay down the general law, since it was assumed that everyone, even the officials of the State Democratic Party, were familiar with the basic law that racial discrimination could not be practiced in the conduct of elections. The decisions in the Elmore case were against the “private club” theory. (Brown vs. Baskin)
See Brown vs. Baskin at:
In Brown vs. Baskin, the Court told the Democratic Party:
… they and all of them will be further restrained and enjoined from requiring any person seeking to enroll, to join or become members of the organizations above referred to, or to vote in the elections or primaries, to take the test oath, either in its original form or as amended, as set out in Rule 36 of the Rules of the Democratic Party of South Carolina, or any modification or other test oath requiring a declaration of principles, understandings, or beliefs, whereby the voters are required to adopt the views, desires, or principles laid down by the authors of such oath which may be in conflict with the rights of persons to exercise their privilege of suffrage in accord with the law and spirit of the American Republic.
Finally, it is worth noting that the Courts made reference to the fact that public (taxpayer) money was used then — and is used now — to pay for the election machinery of primaries. Since public money is used, the Party may not dictate who can participate in the primary.
For these reasons, the FCC should reject the arguments put forth by NBC, and require them to run my ads as a “legally qualified candidate” under law, regardless of the DNCs effort to subvert the law for the Party’s ends.
2) The request of the DNC to preclude me from the Democratic National Convention, and their suggestion that stations not run my campaign ads is a content driven exclusion, and is therefore forbidden under Becker v. FCC, 95 F.3d 75 (DC Cir. 1996)
Clearly, from the letter sent by the DNC, their desire to preclude me from fully participating in the primary process, and to keep me from enjoying my rights under FCC rules regarding advertising, is content driven. They specifically state that they are excluding me based upon my lack of “public writings” and “public statements” that affirmatively demonstrate the Party agenda. This is content based.
Therefore, their suggestion that I not be allowed air time — and the stations who have bought their argument — is content driven, and specifically enjoined by Becker vs. FCC.
In Elmer, the court held:
And the oath which was adopted by the convention (Rule 36) is another attempt to evade the American principle of allowing all persons to freely exercise the suffrage. To require, as a prerequisite to voting, that qualified electors take an oath subscribing to the views of the State Convention and/or its Executive Committee, is a flagrant disregard of the rights of American citizens to exercise their own views and opinions in the choice of representatives in their national government. (Elmer v Rice)
Therefore, the FCC should reject the claim of NBC and other affiliates, and require them to run my ads.
3) That the right of voters and candidates in primaries cannot be infringed by Party bosses based on race or creed. The attempted efforts of the DNC are a violation of the fundamental rights of voters; and that violation emanates from the most sacred beliefs held by voters and candidates.
Finally, in Brown vs. Baskin, the Court held that the Democratic Party could not discriminate in the primaries based upon creed.
The Court Stated:
And now to summarize the case. The decisions of this court, approved by the higher courts, have clearly laid down the principle that the Democratic Party of South Carolina is performing a public function and conducts the true and realistic election wherein are chosen federal officials. This organization is not a private party or club and is subject to the laws of the United States and is not entitled to and is in fact prohibited from making any discrimination on account of race, color or creed in allowing enrollment, membership and full participation in its organization and in the election, whether called primary or by any other name, which it conducts for the choice of presidential electors and federal officials. (Brown vs. Baskin, Emphasis added.)
The Court Ordered — and also mocked the Defendents:
And they and all of them will be further restrained and enjoined from requiring any person seeking to enroll, to join or become members of the organizations above referred to, or to vote in the elections or primaries, to take the test oath, either in its original form or as amended, as set out in Rule 36 of the Rules of the Democratic Party of South Carolina, or any modification or other test oath requiring a declaration of principles, understandings, or beliefs, whereby the voters are required to adopt the views, desires, or principles laid down by the authors of such oath which may be in conflict with the rights of persons to exercise their privilege of suffrage in accord with the law and spirit of the American Republic.
[78 F. Supp. 941]Neither in South Carolina nor in any other State in this union have American citizens as yet come to a pass where a group of party officials, in violation of basic American rights, can prescribe oaths, methods and a code of thought for voters. To carry this to its logical conclusion, it is wondered why the State Convention did not require an oath that all parties enrolling or voting should elect them in perpetuity and with satisfactory emoluments. The one party system has reached its apex in this State where the right is claimed not only to segregate according to race, to prescribe different methods of gaining the right to vote, to forbid participation in the organization for government of the party, but to prescribe mental tests and set up a code of thought which, far from being a bill of rights, might rather be called a bill of persecutions.
I am a Catholic. I have a duty to fight to restore the protection of law to the unborn.
Other Catholic voters are enjoined to do the same.
It is our right to do so in the primary.
For these reasons, the FCC should compel the stations to run my ads, as required by law.
- Super Bowl ad to rile abortion politics (politico.com)