SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------x ABE GEORGE, CANDIDATE FOR KINGS

COUNTY : DISTRICT ATTORNEY IN 2013, AND ABE GEORGE 2013, A POLITICAL COMMITTEE, : Plaintiffs, -against: CHARLES J. HYNES, FRIENDS OF CHARLES J. HYNES, CBS CORP., CBS NEWS, A DIVISION OF CBS CORP., AND CBS TELEVISION NETWORK, A DIVISION OF CBS CORP., Defendants. -------------------------------------: x :

Index No.:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTON

Aaron M. Rubin, Esq. 9 East 40th Street, 11th Floor New York, New York 10016 (646) 425-8102 Attorney for Plaintiffs Abe George, and Abe George 2013 Dated: May 14, 2013

PRELIMINARY STATEMENT In a desperate maneuver to rehabilitate his tarnished image and political legacy plagued by the appearance of impropriety, defendant Charles Hynes, the incumbent Brooklyn District Attorney for the past 23 years, has agreed to take an illegally excessive campaign contribution from defendant CBS in violation of New York State Election Law during the final critical months of his closely contested race for re-election this year. The contribution from CBS to Hynes is under the guise of a reality television show called Brooklyn D.A. that CBS recently announced it will broadcast on the CBS Television Network starting May 28 in six, one-hour weekly episodes, starring Hynes and his office. Additionally, in expending the resources of his office to take part in and coordinate with CBS in the production, filming and promotion of Brooklyn D.A., Hynes has unconstitutionally used state money for the purpose of furthering his own political campaign clearly the prevailing reason he agreed to do the show in the first place. Abe George, the plaintiff, is a former prosecutor and Democratic candidate for Brooklyn District Attorney running in opposition to Hynes in the 2013 election. The Democratic Primary, in which Hynes and George will compete, is set for September 10, followed by the General Election on November 5. By this action, Abe George is seeking a court order to stop the broadcast of Brooklyn D.A. until after the General Election, and a temporary restraining order to immediately stop Hynes and CBS from continuing to advertise and promote the show during the pre-election period. If permitted to go forward before the election is held, the CBS show will destroy any semblance of a fair election and cause irreparable harm to

Abe George and his opportunity to challenge Hynes. An injunction is further warranted to stop Hynes from continuing to use state funds to sway the election in his favor. Certainly the balance of equities for granting an injunction weigh on the side of plaintiffs and the significant public interests at stake in protecting the electoral process from the corruptive impact of undue corporate influence and unlawful conduct by defendants. To be clear, plaintiffs are not asking for a total ban on Brooklyn D.A., but rather that the show, and its promotion, be delayed by several months until after the General Election on November 5, 2013. (In fact, CBS already delayed its show by a week it was originally scheduled to air May 21 but CBS later announced the show would be delayed until May 28 diminishing any claims of prejudice that CBS will assert with respect to airing the show later). CBS is a media conglomerate that broadcasts a wide variety of programming, including news programs such as 60 Minutes and 48 Hours, and also highly successful reality shows like Survivor and Big Brother. CBS is now attempting, in unprecedented fashion, with the willingness and coordination of Hynes, to pass off its latest reality show as news so that it can disingenuously claim protection under the First Amendment while it airs a series about Hynes and his office in the middle of his close political race. If there is any legitimate public interest value to Brooklyn D.A., it is firmly outweighed by the irreparably deleterious impact the show will have on the integrity of the election for Brooklyn District Attorney in 2013, and the candidacy of Abe George. Brooklyn D.A. was not formulated as a news program, in the structure of 60 Minutes or 48 Hours, where a particular issue of public interest is critically examined through in-depth one-on-one

interviews, spontaneous on-the-spot questioning of subjects by reporters, and analysis by industry experts and commentators of a particular issue of public concern. While such news programs are afforded particularized protection under the First Amendment to freely report on campaign issues and their candidates at the height of an election, Brooklyn D.A. is intended as a reality television series, evidencing a far different format where entertainment and sensationalism is priority number one, and the driving focus is not on public interest issues, but personalities who are inevitably transformed into character-driven celebrities. As Hynes has already conceded, the staging for Brooklyn D.A. was developed after his lengthy conversations with CBS pre-dating the show by at least six months, in which he also permitted CBS special coordinated access to several of his ongoing and confidential investigations. (EX. I).1 The efforts, especially on the part of Hynes, to defend and effectively promote the show in the weeks leading up to its broadcast, is further evidence of his involvement in the shows development and content. The value of the CBS show to Hynes in rejuvenating his reputation just months before voters go to the polls, particularly after the excoriation in the press he has received over the past year questioning his politics and policies, will far exceed the state limit for a corporate contribution, which is capped at $5,000 a year. Brooklyn D.A. is nothing more than a coordinated and pre-arranged political expenditure between CBS and Hynes that flies in the face of state law and the sound public policy underlying limits on corporate contributions. The Supreme Court in Citizens United has permitted unfettered corporate spending in a political election only
1

Exhibits cited herein are to the Affirmation of Aaron M. Rubin, dated May 13, 2013, and submitted herewith.

when there is an absence of prearrangement and coordination with a political candidate. Citizens United v. Federal Election Comn, 558 U.S. 310, 345 (2010). Hynes and CBS have already felt the need to publicly defend the propriety of Brooklyn D.A., insisting that it is news or a documentary, in their response to initial media reports that universally characterized the show as Reality TV. (EXs. H, I). Remarkably, Hynes not CBS has taken the lead in defending the show to the public, and in doing so, has tellingly, and unconstitutionally, taken part in the shows own promotion. A day after the show was announced, a Hynes spokesman sounded more like he worked for CBS in defending the show against its tag as Reality TV, stating: The CBS people dont call it that and we dont call it that. I dont believe its accurate to call it a reality show in the genre that were used to seeing reality shows. (EX H). And when the Daily News reported on an internal CBS document that it obtained for its article, Brooklyns District Attorney Charles Hynes Gets His Own Reality Show Ahead of Democratic Primary, (EX. J), it was a Hynes spokesman, not CBS, who, with a suggestion of personal knowledge, explained the internal document, stating What the Daily News was working off of was nothing that was official and nothing that was vetted for accuracy. (EX. H). It is unprecedented for the subject of a news program to publicly defend that program, in a manner suggestive of personal knowledge and control over the shows development, internal processes and intentions, before that show has even aired. The fact that Hynes has done so here is further evidence of his coordination with CBS.

CBS, in turn, after the propriety of the show was challenged by others, including Abe George who sent a letter to CBS asking it to delay the show (EX. C), was caught back-peddling. In response to the letter by Abe George, CBS claimed in its own letter that Brooklyn D.A. is a series of news programs focusing on prosecutors in the Brooklyn District Attorneys Office and their cases that will not violate New York State campaign finance law or any other laws. (EX. E). But dashing the credibility of Hynes and CBS was the fact that only a week earlier, CBS advertised the launch of Brooklyn D.A. clearly as Entertainment on its local television website with the headline, Brooklyn District Attorney Charles Hynes To Star In New CBS Reality Series, followed by the lead statement, A new reality show will give us an inside look into the Brooklyn District Attorneys Office. (EX. F). Notably, when CBS promotes its news show 48 Hours, on the same local website, it does so under the category News, not Entertainment. (EX. G). While Hynes and CBS have additionally tried to claim that Brooklyn D.A. was never intended to involve politics, the internal CBS write-up about the show obtained by the Daily News expressly seized on the moment, stating: When filming begins, Hynes and his press staff will be dealing with a potentially brutal re-election campaign. (EX. J). As will be more fully explained below, Brooklyn D.A. is neither news nor a documentary. It is a desperate quid pro quo by Hynes to rehabilitate his reputation, and that of his office, in exchange for unfettered access to the District Attorneys Office, ratings, profits and, most importantly, publicity that CBS has willingly solicited and already benefited from by crossing the line from legitimate journalism to a de facto infomercial celebrating a heavily entrenched incumbent.

For the reasons set forth below, we request that this Court issue a temporary restraining order and preliminary injunction to stop the broadcast and promotion of Brooklyn D.A. until after November 5, in order to avoid irreparable harm to candidate Abe George, his political committee and campaign, and the 2013 election for Brooklyn District Attorney.2 FACTS AND POLITICAL CONTEXT The following is a summary of the facts as more fully contained in the annexed complaint and affidavits. Hynes has fallen subject to an increasing appearance of impropriety that has made his re-election an uncertainty. The political backdrop leading up to the announcement in March that Brooklyn D.A. would premier at the end of May establishes the clear political necessity for Hynes to exert control over the media to revive his public image through a coordinated effort with CBS, an effort that has and will perpetuate the appearance of impropriety surrounding Hynes. Preventing such impropriety is precisely the compelling public interest that justifies legal limits on corporate contributions, recognized at all levels of jurisprudence because such limits most effectively address the legitimate governmental interest . . . in preventing actual or perceived corruption. Ognibene v. Parkes, 671 F.3d 174, 183-84, 186 (2d Cir. 2012) (Citizens United confirms, yet again, that eliminating corruption or the appearance thereof is a sufficiently important governmental interest to justify the use of closely drawn restrictions on campaign contributions. This interest exists even where there is no actual corruption, because the

In the alternative, plaintiffs request an expedited evidentiary hearing and discovery prior to May 28 to determine the matter.

perception of corruption, or of opportunities for corruption, threaten the publics faith in democracy.) (citations omitted and emphasis added). Heading into the final months of his campaign for re-election, Hynes has been rendered more politically vulnerable than at any other time since he was first elected in 1989, as also reported by the New York Times. (EX. T). The political race, in which plaintiff Abe George is a Democratic candidate running against Hynes, has been widely described as closely contested, with the Democratic Primary in September and General Election in November. (EX. T). Abe George, a former state prosecutor and a political outsider, announced his candidacy in July 2012, when he also established a campaign committee to receive contributions, and then proceeded to out-raise Hynes over the next six months, pulling in approximately $210,000 to Hynes $27,000.3 (EX. S). At the time, the Daily News quoted a political consultant as saying: The amount of money raised against Hynes proves people believe [he] can be beaten and people arent afraid of him anymore. (EX. S). A few weeks before Hynes fundraising setback in January, the Village Voice published a highly critical cover story about Hynes, who was pictured in a cartoon image under the front page headline, Brooklyn Deserves a New D.A.: Why the 23-year Reign of Charles Hynes Must End. (EX R). The article set forth a scathing recital of Hynes record: There have been repeated allegations of prosecutorial misconduct, political influence peddling, and basic ineptitude. Hynes has been widely criticized, for example, for shielding rapists and pedophiles in the ultra-Orthodox Jewish communities in Brooklyn as a way of
3

A third candidate who entered the race, Kenneth Thompson, also outraised Hynes.

currying favor with politically influential rabbis. And several highprofile criminal cases have fallen apart after revelations that his office has either manipulated evidence or withheld exculpatory evidence it is required to disclose to defense attorneys. In several cases, innocent men spent months or even years behind bars. (EX R). The especially intense recent public scrutiny of Hynes started well before the Village Voice headline. On May 10, 2012, The New York Times published a lengthy article on Hynes failure to effectively prosecute cases of child sexual abuse in the ultraOrthodox Brooklyn communities, suggesting that Hynes was misusing his prosecutorial discretion to achieve political gain. (EX. P). There have also been several high profile convictions under Hynes that have come under fire amidst troubling allegations of impropriety by his office in prosecuting the cases. (EX N). The media has reported on these cases, including the wrongful convictions of Jabbar Collins and William Lopez. (EX. N). The wrongful convictions associated with Hynes have also drawn the public scrutiny of several Brooklyn Federal Judges. (EX. N). Just recently, the New York Times reported that approximately 50 murder convictions under Hynes were going to be reviewed for issues. (EX. Y). Hynes has little other political opportunity available to him other than to remain as Brooklyn District Attorney, a position he has vigorously fought for with highly questionable tactics. (EXs. L, M, R). His political reputation was summarized years ago in the public comments of David Yassky, the current chairman of the New York City Taxi and Limousine Commission, who briefly entertained a run against Hynes in 2005. At that time, Yassky, who was a city councilman in Brooklyn Heights, was reported as saying:

When I started to think about running for D.A., more than one person said to me, you better be clean as a whistle and, even if you are, you might still get indicted. (EX. L). In the wake of this political backdrop developed, on March 26, 2013, CBS announced plans to broadcast Brooklyn D.A., a weekly reality television show about Hynes and his office to begin May 28, 2013, in six one-hour episodes. (EXs. A, B). The CBS show has already perpetuated the public perception of impropriety relating to Hynes and his politics, especially as it takes place within the current climate of political corruption in local New York politics.4 After the show was announced, Dan Wise, a former veteran reporter for the New York Law Journal, criticized CBS and Hynes about Brooklyn D.A., stating: A national networks allocation of such an extensive amount of airtime to an incumbent in close proximity to an election raises many troubling questions: Is it fair to the challengers? More fundamentally, does it skew the democratic process? The fairness doctrine died a long time ago, but should powerful media
4

The local climate of recent political scandals involving, among other things, the exchanges of money for favors will contribute to the public perception of corruption around the broadcast of Brooklyn D.A. in the final months of the election. For instance, in April, after two New York legislators were federally charged in corruption scandals, The New York Times subsequently reported a poll showing that more than 80 percent of voters believe that additional local politicians will be accused of ethical malfeasance in the near future. (EX X). During the same time period, the New York Daily News reported that Twenty elected [state] officials since 2004 spent a combined $6.78 million on legal fees related to criminal and ethical investigations against them. (EX X). In April, in the wake of the highly publicized cases of local political corruption, New York Governor Andrew Cuomo pledged, among other things, to seek stronger enforcement of state election law, including a proposal for new laws to make it easier for district attorneys to prosecute public corruption. (EX X). Earlier this month, Brooklyn state Assemblyman John Sampson was indicted for stealing funds from the sale of foreclosed homes to finance his unsuccessful run for Brooklyn District Attorney against Hynes in 2005. (EX X). Further, The New York Times generally reported on the political climate: The subject of public corruption appears likely to loom over the rest of this years legislative session, scheduled to conclude in June. Albany has a long history of corrupt lawmakers, but the issue of criminality has intensified in recent weeks. (EX X).

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organizations exercise self-restraint in such situations . . . It is difficult to see how the hard work and dedication of the offices prosecutors, many of whom are in their thirties and forties, will not rub off favorably on Hynes. (EX K). When news about plans for the show first appeared on March 26, 2013, the improper timing of the show was not lost on the press, which universally characterized Brooklyn D.A. as Reality TV, with headlines such as: Brooklyns District Attorney Charles Hynes Gets His Own Reality Show Ahead of Democratic Primary, NEW YORK DAILY NEWS, March 26, 2013) (The hourlong episodes will be broadcast as Hynes fights for his political life in a hotly contested Democratic primary against two opponents.) (EX. J); Bklyn D.A. Hynes to Star in Reality TV Series, PARK SLOPE PATCH, March 27, 2013) (A little national exposure never hurt nobody! Even the stars who behave badly on reality TV go on to receive loads of fame and a handful of endorsements. Now six-term Kings County D.A. Charles J. Hynes, whos up for re-election, will get that chance too.) (EX. U); Jwoww, the Housewives, and DA Hynes? Its time for a reality check!, BROOKLYN DAILY, April 5, 2013) (Hynes could do with resuscitating his comatose, long-in-the-tooth public image in time for the looming September Democratic primary.) (EX. W). Immediately following the announcement of Brooklyn D.A., Abe George sent a letter to CBS Corp. President Leslie Moonves on March 27 asking the network to stop the broadcast because of its violation of state campaign finance laws. (EX. C). The letter was followed by an email by George to Moonves requesting a meeting to discuss various alternative courses of action, which CBS declined. (EX. D). In response, a CBS lawyer stated in a letter to George dated April 2, 2013: Contrary to your suggestion, CBS News upcoming series of news programs focusing on prosecutors in the Brooklyn District Attorneys Office and their cases will not violate New York State campaign finance law or any other laws. (EX. E).

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Remarkably, however, CBS itself just a week earlier on March 27, 2013, promoted the show on its local television website under the title Entertainment, with the headline Brooklyn District Attorney Charles Hynes To Star In New CBS Reality Series, including a summary of how [a] new reality show will give us an inside look into the Brooklyn District Attorneys Office. (EX. F). Both CBS and Hynes have disingenuously defended Brooklyn D.A. as news because they seek protection for the broadcast under the First Amendment, which permits legitimate news journalism to cover political races and candidates at any and all times throughout an election. So the defendants have been quick to shut down any claim that Brooklyn D.A. is actually Reality TV. That is because while CBS news shows such as 60 Minutes often feature on-the-spot interviews in the field, or one-on-one interviews of their subjects with topical questioning, Brooklyn D.A. has been coordinated with Hynes and his office since at least last November, permitting Hynes to stage his office and image with an unprecedented degree of editorial control abhorrent to any category of news. For instance, Hynes spokesman conceded that the show will involve recreations of the offices most famous cases, sounding more like a jointly produced movie than news. (EX. H.). CBS and Hynes have already appeared coordinated in their parallel defenses of the show, with Hynes its main subject taking the lead. On March 27, 2013, a day after the show was announced, Jerry Schmetterer, Director of Public Information for Hynes at the Brooklyn District Attorneys Office, sounded more like a spokesman for CBS when he publicly stated: The CBS people dont call it that and we dont call it that. I dont believe its accurate to call it a reality show in the genre that were used to

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seeing reality shows. (EX. H). A few days later, Schmetterer explained to a newspaper that Hynes office and CBS had met in November 2012 about the show, and had engaged in lengthy conversations. (EX. I). When the Daily News on March 26, 2013, reported on an internal CBS document referencing Hynes election, it was a Hynes spokesman, not CBS, who defensively insisted the next day that What the Daily News was working off of was nothing that was official and nothing that was vetted for accuracy. (EX. H). Brooklyn D.A. will also feature coordination between Hynes and CBS by the information and access to sensitive investigations that CBS has received from Hynes for the show. In particular, CBS was given access to two sensitive sting operations that prosecutors have been working on for months, and for which Hynes is hoping to make arrests on before the show airs. (EX. J). The length of time and coordinated access to Hynes and his office six hours spread across 6 weeks of the critical final months of a close campaign is hardly characteristic of a news program, and patently unprecedented in nature. Media analysts have reportedly expressed their alarm, including: Stephen B. Shepard, the founding dean of the graduate journalism program at City University of New York, who stated: [For a network to devote six hours of coverage on a single candidate before an election is] totally out of the ordinary when is the last time you heard of a network doing [that]. Merrill Brown, the director of the communications and media program at Montclair State College, who stated: [to devote] six hours of coverage [to the incumbent] in the midst of a hot election race is wrong and will raise the possibility that the candidate will be portrayed as the most dedicated prosecutor in New York City. Dan Wise, former veteran reporter for the New York Law Journal, who stated: I think six hours of what looks like it will be personality- and ratings-driven television carries too great a risk of casting Hynes in a highly favorable light and possibly tilting the playing field toward Hynes, who already has the advantage of being able to attract coverage by exercising the powers of his office. 13

(EX. K). Without an order enjoining the broadcast and promotion of Brooklyn D.A. until after the General Election, the show will result in a corrupt electoral process, both real and apparent, with irreparable harm to a legitimate candidate, Abe George. LEGAL ARGUMENT I. PLAINTIFFS MOTION FOR A TEMPRORARY RESTRAINING ORDER SHOULD BE GRANTED A. Applicable Legal Standard for a Temporary Restraining Order and Preliminary Injunction The purpose of a temporary restraining order is to keep the status quo intact until a full hearing can be had. Commercial Litigation in New York State Courts Section 15:15 (Robert L. Haig ed., 2d ed. 2005). Pursuant to CPLR Sections 6301 and 6313(a), a court may grant a temporary restraining order during the pendency of a preliminary injunction where it appears that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had. N.Y. C.P.L.R. 6301, 6313(a); see also Commercial Litigation in New York State Courts, supra, Section 15:15; Ellens Enters, Inc. v. Cirrus Funding Ltd., No. 601596/02, slip op. at 4-5 (Sup. Ct. N.Y. County Aug. 28, 2002) (referring to a previously issued TRO that was granted pending a preliminary injunction hearing where moving party established irreparable harm and that damages would not easily be quantified.) Wright v. Lewis, 21 Misc. 3d 1120(A) (table), at *1 (Sup. Ct. Kings Co. 2008) (TRO granted to prevent irreparable injury.).

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Some New York courts have applied a three-pronged test for a preliminary injunction to the question of whether to grant a temporary restraining order. See, e.g., Bailey v. Ossi Sport Club, Inc., 71 A.D.3d 1069, 1070 (2d Dept 2010) (granting a temporary restraining order and preliminary injunction and articulating the three-pronged test requiring a showing of irreparable harm, likelihood of success on the merits, and a balancing of the equities in the movants favor.) Plaintiff can establish its entitlement to a temporary restraining order under either standard. Abe George not only can show irreparable harm, but can also establish a likelihood of success on the merits and a balance of the equities in his favor. B. Abe George Will Suffer Immediate and Irreparable Harm As a Result of Defendants Conduct

It is indisputable that the CBS broadcast of Brooklyn D.A. will cause irreparable harm to Abe George by substantially infringing on his opportunity to fairly challenge Hynes in an election free from undue, and illegal, corporate financing for the incumbent. Abe George is a legitimate candidate who has a real chance to win. Although Mr. George is a first-time candidate for Brooklyn District Attorney in 2013 and facing a heavily entrenched incumbent of 23 years, it has been publicly recognized that his grassroots campaign has raised a viable challenge to Hynes. Meanwhile, Hynes and his legacy have been heavily criticized in a very public way by the media and certain public officials and judges. The exposure to Hynes and his office during the six-week broadcast of Brooklyn D.A. will allow Hynes to further solidify his name recognition and gratuitously focus the media on the hard work of his assistants in order to bolster his image and reputation. See, e.g., EX. K (quoting Merrill Brown, the director of the

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communications and media program at Montclair State College, as stating: [to devote] six hours of coverage [to the incumbent] in the midst of a hot election race is wrong and will raise the possibility that the candidate will be portrayed as the most dedicated prosecutor in New York City. (quoting Dan Wise, former veteran reporter for the New York Law Journal, who stated: I think six hours of what looks like it will be personality- and ratings-driven television carries too great a risk of casting Hynes in a highly favorable light and possibly tilting the playing field toward Hynes, who already has the advantage of being able to attract coverage by exercising the powers of his office.). Brooklyn D.A. is a contribution of in-kind services by CBS to Hynes that is of a size and nature to inevitably swing the election in Hynes favor, giving more publicity and name recognition to an incumbent who has had his name in the papers for the last 23 years. The fact that Brooklyn D.A. will feature the incumbent, Hynes, is of particular significance because it is axiomatic that an incumbent usually begins the race with significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal office, the incumbent has access to substantial resources provided by the Government. Buckley v. Valeo, 424 U.S. 1, at 31 fn. 33 (1976). Additionally, the show will impose an increased degree of harm to the election and plaintiffs because Hynes will gain his much needed rehabilitative exposure during the final pre-election months. See, e.g., Citizens United v. Federal Election Commission, 130 S.Ct. 876, 895 (2010) (It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short timeframes in which speech can have influence.).

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C.

Abe George Can Demonstrate a Likelihood of Success on the Merits

Plaintiffs bring two causes of action against Hynes and CBS. The first asserts that Brooklyn D.A. is a campaign contribution by CBS to Hynes in violation of New York State Election Law Section 14-116, which prohibits corporations from giving more than $5,000 to a candidate in any given year. The second cause of action asserts that Hynes violated, and will continue to violate absent the requested injunction, Article VII, Section 8(1) of the New York Constitution by using state money and resources to further his campaign. As will be shown below, plaintiffs have a likelihood of success on the merits on both claims. i. The Election Law Claim To begin, the Supreme Court has firmly endorsed limitations on corporate political contributions because of the corporate structures special characteristics that threaten the integrity of the political process. Federal Election Commission v. Beaumont, 539 U.S. 146, 153 (2003) (finding that regulation barring direct corporate campaign contribution by nonprofit corporation was consistent with the First Amendment). Laws that limit political corporate contributions are enacted for a clear purpose: to prevent corruption, and the appearance of corruption, from infecting the electoral process. See Beaumont, at 154 (In barring corporate earnings from conversion into political war chests, a law restricting corporate contributions was and is intended to prevent corruption or the appearance of corruption.) (citations omitted). The value to Hynes of the exposure he will receive, and has already received, from the CBS show is not an expenditure by CBS that is independent of the candidate a

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distinction made by Citizens United when it struck down limitations on such independent expenditures. Brooklyn D.A. is clearly not an independent expenditure, however, which the Supreme Court defined as political speech . . . that is not coordinated with a candidate. United Citizens, 130 S.Ct., at 910. As set forth in the factual sections above, Brooklyn D.A. has clearly involved a coordinated effort between Hynes and CBS and is therefore an in-kind campaign contribution to Hynes. New York State law prohibits a corporation from contributing, or expending, more than $5,000 to a candidate for political purposes over the course of any given year. Election Law 14-116(2); see also 1974 Op. Bd. Of Elections No. 1.5 New York Election Law Section 14-116(b) states in relevant part: Any corporation or an organization financially supported in whole or in part, by such corporation may make expenditures, including contributions, not otherwise prohibited by law, for political purposes, in an amount not to exceed five thousand dollars in the aggregate in any calendar year. To prevail on a claim under Section 14-116(b), plaintiff must therefore be a candidate voted for at the election or primary, in which a corporation has made a contribution or expenditure for political purposes in excess of $5,000 in any calendar year. See New York State Election Law Sections 14-116(b) and 16-114(3). 1. Abe George is a candidate for Brooklyn District Attorney Abe George is indisputably a candidate for Brooklyn District Attorney in 2013, for both the Democratic Primary on September 10 and the General Election on November 5. Subdivision (3) of section 16-114 of the New York State Election Law
5

The election for Brooklyn District Attorney is governed by New York State Election Law. See NYS Election Law Section 1102.

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expressly contemplates an action by an aggrieved candidate, such as Mr. George, stating: The supreme court or a justice thereof, in a proceeding instituted by a candidate voted for at the election or primary or by any five qualified voters, or by the state or other board of elections may compel by order any person who has failed to comply, or the members of any committee which has failed to comply, with any of the provisions of this chapter, to comply therewith. Election Law Section 16-114(3) (emphasis added). The NYS Election Law further defines candidate as: an individual who seeks nomination for election, or election, to any public office or party position to be voted for at a primary, general . . . election . . . whether or not the public office or party position has been specifically identified at such time and whether or not such individual is nominated or elected, and, for purposes of this subdivision, an individual shall be deemed to seek nomination for election, or election, to an office or position, if he has (1) taken the action necessary to qualify himself for nomination for election, or election, or (2) received contributions or made expenditures, given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to any office or position at any time whether in the year in which such contributions or expenditures are made or at any other time Election Law Section 14-100(7) (emphasis added). Abe George is a candidate under the law because he is an individual seeking election to the public office of Kings County District Attorney, for the Democratic Primary and General Election. Mr. George has clearly taken the necessary action to qualify himself for election, including filing for a campaign committee on July 17, 2012, called Abe George 2013. Mr. George has also received contributions from July 2012 to the present, and made expenditures, with the unequivocal view to bringing about his election to Brooklyn District Attorney in 2013. 2. Brooklyn D.A. is a corporate contribution by CBS to Hynes in excess of $5,000

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Election Law Section 14-100(9) defines contribution as (1) . . . any thing of value, made in connection with the nomination for election, or election, of any candidate, or made to promote the success or defeat of a political party or principle, or of any ballot proposal, (3) any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election or election of any candidate, or any payment made to promote the success or defeat of a political party or principle, or of any ballot proposal including but not limited to compensation for the personal services of any individual which are rendered in connection with a candidate's election or nomination without charge; provided however, that none of the foregoing shall be deemed a contribution if it is made, taken or performed by a candidate or his spouse or by a person or a political committee independent of the candidate or his agents or authorized political committees. For purposes of this article, the term independent of the candidate or his agents or authorized political committees shall mean that the candidate or his agents or authorized political committees did not authorize, request, suggest, foster or cooperate in any such activity. Election Law Section 14-100(9) (emphasis added). While it is not disputed that Brooklyn D.A. is a thing of value for both CBS and Hynes worth well in excess of $5,000 it is hardly an expenditure by CBS that is being made independent of Hynes. In the context of federal campaign finance issues, for instance, the Supreme Court has found that expenditures that are made in connection with the control and coordination of a candidate are contributions. See Buckley, at 46 (Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under [federal law].). This view was confirmed in Citizens United, which cited Buckley, in stating that an independent expenditure is political speech presented to the electorate that is not

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coordinated with a candidate, while a contribution involves prearrangement and coordination with a candidate. Citizens United, at 902, 910. As set forth in the factual sections above, Brooklyn D.A. has been developed with particular coordination from Hynes involving the defense and promotion of the show, and control over its content. Brooklyn D.A. also fails to qualify as news under the standard that the Federal Communications Commission (FCC), which provides the licensing for CBS broadcasts, uses in determining claims made under the equal time provision of the Federal Communications Act, 47 U.S.C. Section 315(a).6 As per section 315(a) an appearance by a candidate on a broadcast does not trigger equal time provisions if that appearance takes place during certain programs designated as news. 47 U.S.C. 315(a) (carving out an exemption for equal time for programming that is considered a (1) bona fide newscast, (2) bona fide interview, (3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or (4) on-thespot coverage of bona fide news events). A claim under equal time is not at issue here. Nevertheless, there exists no clear definition of news under the guidelines used by the FCC, which could be used as guidance here, and which has generally pointed to shows like Meet the Press and Face

The equal time provision requires licensed broadcast stations that allow qualified candidates for office to use the stations to provide equal opportunities to all other qualified candidates for that office). We note that it is unlikely Abe George would have standing to bring a private cause of action for violations of equal time under Section 315(a). Belluso v. Turner Communications Corp., 633 F.2d 393, 397 (5th Cir. 1980); Forbes v. Arkansas Educational Television Communications Network Foundation, 22 F3d 1423, 1427 (8th Cir. 1994), revd on other grounds, 523 U.S. 666 (1998) (There is no private cause of action to enforce [the statute] ...).

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the Nation to exemplify news. While the FCC has at times gone as far as to expand its definition of news to cover other, less traditional formats, such as interviews of candidates that take place on Politically Correct and even the Howard Stern show, it has never addressed whether a reality television show falls under its news exemption. Nevertheless, Brooklyn D.A. fails to meet the FCC requirements for news or a documentary. See In re Request of A&E Television Networks for Declaratory Ruling, F.C.C. staff ruling, dated June 20, 2000 (finding that a news program, in whatever format, typically involves a regularly scheduled program that does not originate with the candidate). Brooklyn D.A. is not a regularly scheduled program it is a brand new concept that will air for the first time on May 28. Additionally, the evidence shows that it originated after lengthy conversations between Hynes and CBS pre-dating the show by at least six months. ii. The NYS Constitution Claim Hynes has used the publicly funded resources of his office to further his personal political campaign for re-election by participating, and causing his office to coordinate, with CBS for Brooklyn D.A. The Court of Appeals has squarely held that the use of public funds to finance the agenda of a political candidate is a clear violation of article VII. Section 8(1) of the New York Constitution. See Schulz v. State, 86 N.Y.2d 225, 234 (1995). Article VII, Section 8(1) of the New York Constitution states: the money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.

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In Schulz, the plaintiffs, citizen taxpayers, alleged that the Governor had unlawfully used state moneys to serve the private political purposes of the Governor [and] his campaign committee by causing his office to print and distribute a partisan mailing, passed off as a newsletter, on the eve of an election. Schulz, at 230. The Court found that the Governors spending on the newsletter that contained a mixture of education and advocacy about welfare reform established a prima facie case under article VII. Section 8(1) of the New York Constitution. Schulz, at 235 (finding that newsletter improperly furthered political goals even though it contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support). The Court further found, We think it is unassailable that the use of public funds out of a State agencys appropriation to pay for the production and distribution of campaign materials for a political party or a political candidate or partisan cause in any election would fall squarely within the prohibition of article VII. Section 8(1) of the Constitution. Id. As in Schulz, Hynes, a state official, has already used state money for his own political purposes. CBS motivations aside, Hynes partisan political intent in agreeing to participate with his office in the production of Brooklyn D.A. in the final months of his re-election campaign is beyond dispute. As shown through the factual recitation above, Hynes has used state money, including the resources of his office and personnel, when he, among other things, (1) publicly defended the show against recent criticism, in effect, taking part in the shows promotion, (2) coordinated with CBS producers in the production of the show, including briefing CBS on confidential investigations, and (3) directed his employees to coordinate and expend time with CBS producers and film crew.

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Finally, there is no dispute that Brooklyn D.A. will inevitably have the effect of promoting Hynes and his office in a favorable light, as some media observers have already observed, including: Stephen B. Shepard, the founding dean of the graduate journalism program at City University of New York, who stated: [For a network to devote six hours of coverage on a single candidate before an election is] totally out of the ordinary when is the last time you heard of a network doing [that]. Merrill Brown, the director of the communications and media program at Montclair State College, who stated: [to devote] six hours of coverage [to the incumbent] in the midst of a hot election race is wrong and will raise the possibility that the candidate will be portrayed as the most dedicated prosecutor in New York City. Dan Wise, former veteran reporter for the New York Law Journal, who stated: I think six hours of what looks like it will be personality- and ratings-driven television carries too great a risk of casting Hynes in a highly favorable light and possibly tilting the playing field toward Hynes, who already has the advantage of being able to attract coverage by exercising the powers of his office.

(EX. K).

D.

The Balance of Equities Is in Favor of Abe George, as Defendants Would Not Suffer Significant Prejudice from the Issuance of a TRO and Preliminary Injunction

The balance of equities clearly falls on the side of the plaintiffs in protecting the integrity of the democratic process and the interests of a viable candidate for state office. To be clear, plaintiffs are not asking for a total ban on Brooklyn D.A., but rather that the show, and its promotion, be delayed by several months until after the General Election on November 5, 2013. (In fact, CBS already delayed its show by a week it was originally scheduled to air May 21 but CBS later announced the show would be delayed until May 28). The Supreme Court has recognized that there are compelling public interests that are protected by limiting corporate contributions of money or services to a political

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candidate. For instance, in Buckley v. Valeo, 424 U.S. 1 (1976) the Supreme Court concluded that the contribution limitation furthered the government's interest in the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Buckley, at 25 (holding that provisions limiting individual contributions to campaigns were constitutional despite First Amendment objections); see also Ognibene v. Parkes, 671 F.3d 174, 183 (2d Cir. 2012) (Citizens United confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley, in preventing actual or perceived corruption.). Because of those important public interests at stake, limits on campaign contributions pose only indirect constraints on speech and associated rights. Ognibene v. Parkes, 671 F.3d 174, 183 (2d Cir. 2012) (affirming the constitutionality of certain statutory amendments expanding the limitations on corporate campaign contributions in New York City elections, finding that such restrictions only indirectly constrained free speech). There is no factual dispute that the perception of corruption has surrounded much of Hynes political legacy and most recently his participation in Brooklyn D.A. That perception has been reflected in the critical commentary by the media over Hynes politics, and the particular public scrutiny over the anticipated airing of the CBS show. Whether the corruption has been real or apparent, there is no denying that its appearance has existed for years, and especially leading up to the broadcast of Brooklyn D.A. In this regard, the Second Circuit has noted that it is not necessary to produce evidence of

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actual corruption to demonstrate the sufficiently important interest in preventing the appearance of corruption. Ognibene, at 184, 186 (Citizens United confirms, yet again, that eliminating corruption or the appearance thereof is a sufficiently important governmental interest to justify the use of closely drawn restrictions on campaign contributions. This interest exists even where there is no actual corruption, because the perception of corruption, or of opportunities for corruption, threaten the publics faith in democracy.). Further, the appearance of corruption in this case has been reinforced by the recent climate of political scandal in New York local politics. See Ognibene, at 185, 190 (noting that where people believe that many public officials are corrupt, and there is substantial and material evidence to support that belief, clearly the public may enact preventative measures to address the contaminating belief that everything is for sale and to restore faith in the integrity of the political process.). An injunction will also put a stop to the violation of any other related statutes governing the conduct in question.7

For instance, NY Election Law 14-126 states, 4. Any person who knowingly and willfully contributes, accepts or aids or participates in the acceptance of a contribution in an amount exceeding an applicable maximum specified in this article shall be guilty of a misdemeanor. 5. Any person who shall, acting on behalf of a candidate or political committee, knowingly and willfully solicit, organize or coordinate the formation of activities of one or more unauthorized committees, make expenditures in connection with the nomination for election or election of any candidate, or solicit any person to make any such expenditures, for the purpose of evading the contribution limitations of this article, shall be guilty of a class E felony. NY Election Law 14-126(4), (5).

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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant its motion for a preliminary injunction and temporary restraining order. Dated: May 14, 2013 New York, New York ______________________ Aaron M. Rubin, Esq. Attorney for Plaintiffs

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