Castle, Senior Circuit Judge, and Kiley and Cummings, Circuit Judges.
Plaintiff-appellant, Chicago Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, prosecutes this appeal from the order of the District Court granting summary judgment to the defendants-appellees, Chicago Tribune Company, Chicago American Publishing Company, and Field Enterprises, Inc., in the Union's action against said defendant newspaper publishers. The Union's complaint, as amended, seeks injunctive relief to compel the defendants to publish an editorial advertisement tendered by the Union; the recovery of compensatory and punitive damages for defendants' refusals to publish such advertisement; the entry of a declaratory judgment declaring that defendants may not arbitrarily refuse to publish advertisements expressing ideas, opinions or facts on political or social issues and that defendants may not refuse to publish such advertisements if they are lawful and the party submitting the advertisement is willing to pay the usual rate and there is no technical or mechanical reason why the advertisement cannot be published; and that defendants be permanently enjoined from refusing to publish such lawful advertisements. Count I of the complaint, which seeks injunctive relief to compel publication of the specific advertisement tendered by the Union, and Count IV which seeks declaratory relief, assert a right in the Union*fn1 under the First and Fourteenth Amendments to compel the defendant newspaper publishers to accept its lawful editorial advertisements for publication at the usual rates for such advertisements. Counts II and III assert, respectively, alleged breach of contract and the Union's justifiable reliance upon the defendants' representations.
The District Court in granting defendants' motions for summary judgment found no genuine material issue of fact presented by the pleadings, affidavits, depositions and other materials before the court for consideration in connection with the motions, and concluded that absence of state action deprived the court of jurisdiction and no other claim is stated upon which relief might be granted. The appeal herein is grounded on the assertion that the court erred in its conclusion that defendants' refusals to publish the advertisement did not involve state action.
The Union is a Chicago labor union which represents clothing and garment workers. It has conducted a campaign to limit the importation of foreign-made clothing into the United States on the grounds that the importation and sale of such clothing reduces the number of jobs available to its members. The campaign included picketing directed against Marshall Field & Co., the operator of a large Chicago department store which retails imported clothing and utilizes the advertising columns of the defendants' newspapers to advertise such merchandise.
The defendants Chicago Tribune Company and Chicago American Publishing Company each publish a Chicago newspaper: The Chicago Tribune and Chicago Today, respectively. The defendant Field Enterprises, Inc. is the publisher of The Chicago Sun-Times and The Chicago Daily News. There are no newspapers with general circulation throughout the Chicago metropolitan area other than the four newspapers owned and published by the defendants.
The Union, in an attempt to communicate its position to the general public in the Chicago metropolitan area and to the same readers who are exposed to Marshall Field & Co.'s advertisements, submitted to each of the defendants' four newspapers a full page advertisement which depicted a picket line beneath a representation of the Marshall Field's clock (an identifying feature of the Chicago department store), explained why the Union was picketing the Marshall Field & Co. store, and set forth the Union's basis for its opposition to the sale of imported foregin-made clothing. Each of the newspapers refused to publish the advertisement. Each reserves the right to reject any advertisement.*fn2
The Union recognizes that with respect to the claims it asserts in Counts II and III of its complaint it must rely wholly on the doctrine of pendent jurisdiction, that these counts afford no independent basis for federal jurisdiction, and their justiciability in a federal court action depends upon whether Counts I and IV state a federal claim.
The Union contends that Counts I and IV of its complaint allege facts which establish a violation of rights guaranteed it by the First and Fourteenth Amendments, and therefore state a federal claim cognizable by the District Court in the exercise of that court's jurisdiction conferred by 28 U.S.C.A. §§ 1331 and 1343(3), because the factual allegations require a conclusion that the defendants' rejections of its editorial advertisement involved state action. In this connection the Union points to what it characterizes as a special relationship between the defendants' newspapers and the State arising from Illinois statutory provisions exempting newspaper employees from jury service;*fn3 requiring newspaper publication of certain legal notices,*fn4 notices of election*fn5 and municipal ordinances;*fn6 and excluding the purchase, employment and transfer of such tangible personal property as newsprint and ink for the primary purpose of conveying news from the incidence of retailers' occupation, use and service use taxes;*fn7 from the Chicago city ordinance restricting newsstands permitted on public streets to the sale of daily newspapers printed and published in the city;*fn8 and from the custom of providing a designated space in public buildings for the news-gathering use of representatives of the press and other news media. It is urged that because the defendants, taken together, comprise the entire newspaper publishing industry with newspapers of general circulation throughout the Chicago metropolitan area, and are the recipients of economic benefit and favored treatment flowing from public sources as the result of the statutes, ordinance and custom above mentioned, their relationship to the State is such that there is "state involvement" in the operation of defendants' newspapers under the rationale relied upon by the Supreme Court of the United States to make conduct of a private business or enterprise subject to Fourteenth Amendment or other constitutional restrictions directed to state action. Cases cited as expressing that rationale include Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276; Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809; Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601. And, Marjorie Webster Junior College, Inc. v. Middle States Association of Colleges and Secondary Schools, Inc. (D.C.D.C. 1969) 302 F. Supp. 459 is pointed to as a recent application of such rationale.
But analysis of the foregoing argument on the basis of the controlling facts here involved reveals that the premises upon which it is constructed are unsound; that the conclusion drawn that there is "state involvement" in the operation of defendants' newspapers, or in the formulation or application of defendants' policies with respect to the acceptance or rejection of editorial advertising, is wholly unwarranted; and that the decisions cited in support thereof are inapposite.
And, this appears to be especially so when the relevance of the argument advanced is viewed and measured against the background of the traditional concept of the role of the press in our society. In this latter connection the District Court in the memorandum opinion it filed aptly observed:
"Rather than regarded as an extension of the state exercising delegated powers of a governmental nature, the press has long and consistently been recognized as an independent check on governmental power. 'The right of free public discussion of the stewardship of public officials was . . ., in Madison's view, a fundamental principle of the American form of government.' New York Times Co. v. Sullivan, 376 U.S. 254, 275, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). So it is that the national policy favoring full and frank exercise of the press' freedom 'may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.' Id. at 270. See Chafee, Free Speech in the United States 19, 21-22, 29 (1954).
In sum, the function of the press from the days the Constitution was written to the present time has never been conceived as anything but a private enterprise, free and independent of government control and supervision. Rather than state power and participation pervading the operation of the press, the news media and the government have had a history of disassociation."
With this in mind, we turn to consideration of the decisions which are cited to us as enunciating the standards which are to be applied for the purpose of determining whether there is such state involvement in a private business or enterprise that the latter's action becomes state action within the ...