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December 19, 1969


The opinion of the court was delivered by: Marovitz, District Judge.


Defendants' Motions for Summary Judgment

Plaintiff's Motion for Preliminary Injunction

This action arises from the refusal of the defendants, the Chicago Tribune Co. (Tribune), the Chicago American Publishing Co. (American), and Field Enterprises, Inc. (Field), to publish in their respective newspapers an advertisement submitted by the plaintiff, Chicago Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (Union). The plaintiff is seeking both injunctive relief and compensatory and exemplary damages.

Plaintiff is a national labor union with numerous local unions in the Chicagoland area. Defendant Tribune is the owner and publisher of a major Chicago newspaper, the Chicago Tribune. Defendant American, which owns and publishes another major Chicago newspaper, Chicago Today, is a wholly owned subsidiary of defendant Tribune. Field is the owner and publisher of the Chicago Sun-Times and the Chicago Daily News, two other major metropolitan dailies.

Union is currently involved in a dispute with Marshall Field & Co., the owner and operator of Chicago's largest retail department store, regarding the sale of imported men's and boys' clothing. Marshall Field & Co. is a leading Chicagoland outlet for imported clothing. It is Union's position that the unrestricted sale of imported men's and boys' clothing will eliminate jobs for American workers manufacturing such clothing, that such a result would impose a hardship on those workers specifically and the American public generally, and that, consequently, retail outlets of foreign made clothing should refrain from the purchase and resale of such goods and the public should not buy them until such time as the exporting nations voluntarily agree to quotas on the amount of clothing to be sent into the United States.

During the course of this dispute, which continues at this time, Union prepared and submitted to defendants an advertisement for publication in their respective newspapers. The ad explained why plaintiff was picketing Marshall Field & Co. and set forth Union's position on the sale of imported men's and boys' clothing. All four major metropolitan newspapers refused to publish the ad.

In Count I of its complaint, Union contends that defendants are quasi-public entities whose refusal to publish is a violation of plaintiff's constitutional rights to free speech and equal protection. Count II alleges that defendants' refusal to publish Union's ad constitutes a breach of contract, which contract arises from plaintiff's acceptance of an alleged standing offer by the defendants to print any lawful advertisement. Count III alleges that plaintiff justifiably relied to their detriment on representations by the defendants to the effect that they would publish any lawful advertisement. In its prayer for relief, Union asks that the defendants be permanently enjoined from refusing to publish the submitted ad, that during the pendency of this action similar equitable relief be afforded, or that defendants be enjoined from publishing any advertisement of Marshall Field & Co. for or including imported men's or boys' clothing. Union also seeks $1,000 in compensatory damages and $5,000 in exemplary damages.

Presently before the court are plaintiff's motion for a preliminary injunction and defendants' motions for summary judgment. The motion for preliminary injunction seeks the equitable relief found in the prayer of plaintiff's complaint. Field's motion for summary judgment contends that the complaint fails to state a claim upon which relief may be granted. In addition to this contention, the other defendants, in their motion for summary judgment, contend that this court lacks federal jurisdiction and that the granting of requested relief would violate defendants' rights to freedom of the press and free speech under the federal and state constitutions.

Initially, we note that summary judgment is appropriate where, as here, there are no material factual issues in dispute and only legal issues need be resolved. Silverstein v. United States, 293 F. Supp. 1106, 1110 (N.D.Ill. 1968).

Counts II and III, which are based on contractual or quasi-contractual theories, have not been supported by any discussion in plaintiff's brief and may be dismissed easily. Under general contract theory, the presumption is that general advertising aimed at the public is not an offer to enter a contract.

  "Neither the advertiser nor the reader of his
  notice understands that the latter is empowered
  to close the deal without further expression by
  the former. Such advertisements are understood to
  be mere requests to consider and examine and
  negotiate; and no one can reasonably regard them
  otherwise unless the circumstances are
  exceptional and the words used are very plain and
  clear." 1 Corbin, Contracts § 25, at 75 (1963).

Cf. Wall v. World Publishing Co., 263 P.2d 1010, 1012 (Okla. 1953) (absent express promise, invitation by newspaper to readers to write letters on matters of public interest is not offer to publish all letters received in response).

None of the defendants has explicitly extended an offer to the general public to publish any lawful advertisement which is submitted for publication by a party who is willing and able to pay the standard advertising rate, nor has any defendant so represented that such a policy exists. In plain and clear words, each has reserved the right to reject any advertisement. See The Chicago Tribune Advertising Acceptability Guide, p. 3, submitted as Exhibit B to Complaint; "General Advertising Rates: Chicago Tribune, Chicago Today," (p. 12) submitted as Exhibit A to Affidavit, ΒΆ 3, of Mr. Charles B. Jordan; Affidavit of Mr. Howell Jones, p. 2. Parenthetically, the Tribune guidelines discuss the newspaper's concern with honesty, taste and effectiveness, and indicate that the newspaper will exclude material which, for instance, it feels is misleading, unfair, indecent or illegal. At this time, we need make no evaluation as to the reasonableness of this policy. ...

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