Cox vs. Fox
CONTACT: For interview, call John Cox or aide at: 212-699-2518 or 19.
COX VS. FOX
Lawsuit could Delay Fox's Presidential Debates
Court to Determine if Fox was "Fair and Balanced" or "Fairly Biased"
NEWS CONFERENCE TODAY 1:00 PM ET OUTSIDE FOX NEWS HQ
For Immediate Release
WHO: GOP Presidential Candidate John Cox
WHAT: News Conference
WHERE: In front of Fox News Channel headquarters, 1211 6th Ave, New York
WHEN: 1:00 pm Eastern Time, Thursday, May 10, 2007
WHY: To give details of today's lawsuit against Fox News for Debate Exclusion
WOW: Fox's moves goal posts in middle of game, changing requirements, etc.
May 10, 2007 - Columbia, SC. Attorneys for Republican Presidential Candidate John Cox is filing a lawsuit today in the U.S. District Court in Columbia, SC, requesting an injunction against Fox News Channel's broadcast of the "First in the South" Republican Presidential Debate scheduled for 9pm EST on May 15, 2007 in Columbia, South Carolina. (See complaint below.)
John Cox will give a statement during a news conference in front of Fox News Channel's U.S. headquarters at 1211 Avenue of the Americas in New York.
Fox News Channel conducted a poll of the GOP Presidential Candidates registered to appear on the South Carolina primary election ballots to determine who would be included in their debates--except they selectively left off businessman John Cox, from their list of 10 choices. Ironically, even though Cox was left off the Fox poll, he actually finished first place in one independent South Carolina county straw poll and second place in another.
But when the poll results come in, Fox faced the fact that a populist businessman was acing out an elected congressman and a governor! Fox's poll showed Jim Gilmore and Ron Paul received zero percent, tying for 10th place and disqualifying them from the debate, while Cox finished 5th place in the combined South Carolina county polls and first place in the Aiken County, SC poll. So, what did Fox do? They changed the rules, throwing out their poll and using new criteria that allowed their chosen 10 to participate while excluding Cox.
On February 13, 2006, John Cox became the first Republican to file Statement of Organization papers with the Federal Election Commission as a candidate for President of the United States for the 2008 election cycle. Since that time, John Cox has established campaign offices, hired campaign staff, and recruited volunteers throughout the country; including the early primary states of New Hampshire, Iowa and South Carolina. Unlike most of the other Republican Presidential Candidates that participated in last week's Reagan Library Debate, John Cox has visited nearly every county in the three early primary states.
In March of 2007, John Cox placed 5th against all of the other Republican Presidential Candidates in an IowaPolitics.com survey of Iowa Republican Party County Chairmen. On April 18, 2007, John Cox placed 2nd in the McCormick County, SC Republican Party County Convention Straw Poll. On April 19, 2007, John Cox came in 1st place in the Aiken County, SC Republican Party County Convention Straw Poll, garnering more than 30% of the vote from convention delegates.
On March 15, 2007, Katon Dawson, Chairman of the South Carolina Republican Party, wrote a letter to all Republican Presidential Candidates, including John Cox, setting forth the criteria for being allowed to participate in the Fox News Channel Republican Presidential Debate scheduled for May 15, 2007. One of the criteria stated that a candidate must have "garnered at least 1% in recent state and national polls leading up to the registration deadline as determined by Fox News Channel and the South Carolina Republican Party."
Both SC State GOP Chairman Katon Dawson and Marty Ryan, executive producer of political programming for Fox News Channel, as late as April 26, 2007, publicly insisted that this specific criteria would be used to ensure that if a candidate did not poll at least 1% in the Fox News Channel national and state polls they would not take part in the May 15th Debate.
Just prior to May 1, 2007, the SC Republican Party and Fox News Channel decided to discard current polling data and only use polling data from April 1-3, 2007. Like other Fox News Channel polls, this poll chose not list John Cox as a candidate, and their poll did not allow those being surveyed to choose John Cox. By doing this, it guaranteed the fact that John Cox could not receive a single vote in their polls. Coincidentally, candidates Jim Gilmore, Duncan Hunter, Ron Paul, and Tom Tancredo each received exactly 1% in their South Carolina poll. Furthermore, Fox News Channel chose not to use their own poll conducted nationwide on April 17-18, 2007 in which Jim Gilmore and Ron Paul both received 0%. If Fox News Channel were to use this more recent poll, neither of these two candidates would be allowed to participate in the May 15, 2007 debate.
Use of the South Carolina Poll was not only arbitrary, but was also
improper. The Fox News Channel Polls that they are now using are not recent.
They have chosen to ignore their more recent polls which manipulated the
results in order to meet the criteria required to participate in the upcoming
debate. Without listing John Cox as a candidate, they guaranteed that he
would not be included while leading him to believe that he had a chance
to be included. Since John Cox is an official candidate, as determined
by the FEC, and viable, as determined by Republican Party activists in
numerous county straw polls, the Fox News Channel polling data is deemed
biased and inaccurate.
ABOUT JOHN COX
John Cox is the author of "Politic$, Inc., Principle, not profit: why we need statesmen, not career politicians" and "Campaign for Prosperity and Renewal."
A Chicago resident investment advisor, John attended the University of Illinois at Chicago, graduating with honors and a degree in Accounting and Political Science. He also has a law degree from IIT/Chicago-Kent College of Law, graduating with high honors in 1980.
The father of four daughters, Cox opened his first business--a law and accounting firm--in 1981. An investment advisory firm, real estate management company and a venture capital firm soon followed. During the 1990's, Cox led the investment group that purchased Jays Potato Chips, a major regional food manufacturer and saved over 600 jobs in the Chicago area.
John has been a member of the Club for Growth since its inception, ran for Congress in 2000 and U.S. Senate in 2002. He was also the President of the Chicago Cook County Republican Organization in 2004 and is active in national politics, serving on the National Republican Senatorial Committee.
John serves as the co-Chairman of the Illinois Branch for the Coalition
for Modernization and Protection of America's Social Security System and
as Chairman of the Midwest coalition for Tax Reform and Economic Growth.
Additional information is available at: www.cox2008.com
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
JOHN H. COX and )
COX 2008 COMMITTEE, INC., )
SOUTH CAROLINA REPUBLICAN )
PARTY and )
FOX NEWS NETWORK, LLC d/b/a )
FOX NEWS CHANNEL, )
COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
Plaintiffs John H. Cox and Cox 2008 Committee, Inc., by their undersigned attorneys, as their complaint for temporary restraining order, preliminary and permanent injunction pursuant to Fed. R. Civ. P. 65(a) and (b), and declaratory judgment against defendants South Carolina Republican Party and Fox News Network, LLC d/b/a FOX News Channel, as supported by the Affidavit of John H. Cox attached hereto, allege as follows:
ALLEGATIONS COMMON TO ALL COUNTS
Nature of the Action
1. This is a civil action in which plaintiffs seek to temporarily, preliminarily and permanently enjoin defendants from proceeding with a televised political debate on May 15, 2007, on the grounds that John Cox's exclusion from the debate is unconstitutional in violation of the First and Fourteenth Amendments of the United States Constitution, declare that John Cox be included as a debate participant.
Jurisdiction and Venue
2. This action arises under the Constitution of the United States, Civil Rights Act of 1871, 42 U.S.C. S 1983, and the Declaratory Judgment Act, 28 U.S.C. S 2201. This Court has jurisdiction under 28 U.S.C. SS1331 and 1343(a)(3).
3. This district has venue under 28 U.S.C. SS 1391 (b) and (c). Defendant South Carolina Republican party resides in this district, a substantial part of the events or omissions giving rise to the claims occurred in this district and defendant Fox News Network, LLC d/b/a FOX News Channel has contacts in this district sufficient to subject it to personal jurisdiction if this district were a separate State.
4. Plaintiff John H. Cox ("Cox") is a Republican Party candidate for the office of President of the United States in the 2008 election. Cox is a citizen of Illinois.
5. Plaintiff Cox 2008 Committee, Inc. ("Committee") is a non-profit corporation organized and existing under the laws of the State of Illinois, with its principal place of business in Illinois. The Committee is the principal political campaign committee, within the meaning of 2 U.S.C. S 431(4), supporting the nomination and election of Cox.
6. Defendant South Carolina Republican Party ("Party") is a South Carolina unincorporated political association, with its principal place of business in Columbia, South Carolina.
7. Defendant Fox News Network, LLC d/b/a FOX News Channel ("FOX News") is a limited liability company organized and existing under the laws of the State of Delaware, with its principal place of business in New York.
Cox's Candidacy and Viability as a Candidate
8. Cox ran for the United States Congress, Illinois 10th District in 2000, and placed fifth in the Republican primary out of a crowded field of eleven candidates.
9. Cox also ran for the United States Senate in Illinois in 2002.
10. Cox ran for the Cook County Recorder of Deeds in 2004 as the Republican nominee and received 41.43% of the votes against a long-time political heavyweight in Democratic-strong Cook County, Illinois.
11. Cox was the President of the Cook County Republican Organization in 2004, and has been a member of the National Republican Senatorial Committee since 2000.
12. On February 13, 2006, Cox was the first Republican to file with the Federal Election Commission a Statement of Organization, announcing his candidacy for President of the United States for the 2008 election cycle.
13. Cox has campaign offices, staff and volunteers in South Carolina, New Hampshire, Iowa and Illinois and volunteers in more than 30 states.
14. Since Cox announced his candidacy in February 2006, he has visited approximately 42 of the 46 counties in South Carolina, all 99 counties in Iowa and all 10 counties in New Hampshire.
15. Cox has conducted between 400 and 500 radio and print interviews concerning his Presidential candidacy.
16. Cox attended the South Carolina Republican Convention in 2006, five South Carolina County conventions in 2007, and the Iowa and New Hampshire Republican Conventions in 2006.
17. IowaPolitics.com conducted an Iowa survey of all the Iowa Republican county chairmen during the months of February and March 2007 asking which presidential candidates they considered supporting. Six chairmen said they were already committed to a candidate; Cox received three votes, as did Mitt Romney. Those committed to Cox cited his "status as a D.C. outsider and his conservatism" as their reason. The results of that survey show that Cox received more support than Republican contenders Tom Tancredo, John McCain, Sam Brownback, Tommy Thompson, Duncan Hunter, Ron Paul, George Pataki, Jim Gilmore and Chuck Hagel.
18. On April 19, 2007, Cox won the Aiken County, South Carolina Republican Party County Convention Straw Poll with 30.4% of the votes cast.
19. Between April 16 and April 21 numerous other straw polls were conducted in Anderson County, Charleston County, Richland County, Greenville County and McCormick County. Cox came in second in the McCormick County straw poll with 19.19% of the vote, and performed reasonably well in the other counties.
20. In every one of the above straw polls, Cox polled more votes than Tom Tancredo, Ron Paul and Jim Gilmore.
The South Carolina Presidential Debate
21. Under Section 7-11-20 of the South Carolina Code of Laws, party primary elections are conducted by political parties certified by the South Carolina State Election Commission.
22. The Party is certified by the South Carolina State Election Commission to conduct and set the filing requirements for the South Carolina 2008 Republican Presidential Primary.
23. Based upon Section 7-11-20 of the South Carolina Code of Laws, South Carolina has delegated to the Party the power to fix the qualifications of the Republican primary election and therefore has delegated a state function to the Party, making the Party's actions the actions of the State of South Carolina, and giving rise to state action for purposes of federal jurisdiction.
24. Entwined with the South Carolina Republican Primary is the First-in-The-South Republican Party Presidential Candidates Debate ("Debate") scheduled to occur on May 15, 2007 at 9:00 p.m. at the Koger Center for the Arts in Columbia, South Carolina. The Debate is run by the Party, and is co-hosted by FOX News, which will moderate and broadcast the event nationally.
25. For purposes of the Debate, FOX News is a willful participant in joint activity with the Party and therefore with the State of South Carolina.
26. On March 15, 2007, Katon Dawson ("Dawson"), Chairman of the Party wrote a letter to Cox setting forth the requirements to participate in the Debate. A true and correct copy of the letter is attached hereto as Exhibit 1.
27. The March 15th letter set forth 5 specific criteria to be satisfied for debate participation. The Party developed these criteria in coordination with FOX News. The fifth criteria was that a candidate have "garnered at least 1% in recent state and national polls leading up to the registration deadline as determined by Fox News Channel and the South Carolina Republican Party."
28. Both Dawson and Marty Ryan, executive producer of political programming for FOX News, as late as April 26, 2007, publicly insisted that this specific criteria would be used to ensure that if a candidate did not poll at least 1% in national and state polls they would not take part in the Debate.
29. Nevertheless, just prior to the May 1, 2007 deadline, the Party and FOX News abandoned the polling criteria. On information and belief, the polling criteria was discarded because several of the candidates who filed for the South Carolina Republican Primary did not poll at least 1% in national and state polls and therefore they would not be allowed to take part in the Debate. These candidates, all of whom had been invited to participate in the Reagan Presidential Library Foundation GOP Presidential Candidates' Debate scheduled for May 3, 2007, complained to the Party and FOX News about their impending inability to participate in the Debate.
30. In order to curry favor with these candidates and allow them to participate in the Debate, the Party and FOX News conspired to arbitrarily rely upon a single Fox News/Opinion Dynamics Poll of 600 likely South Carolina Republican primary voters ("South Carolina Poll") conducted on April 1-3, 2007 as the new polling criteria. A true and correct copy of the South Carolina Poll is attached hereto as Exhibit 2.
31. The South Carolina Poll did not disclose Cox as a Republican candidate. Of the ten candidates invited to the Debate, all ten were disclosed as candidates in the South Carolina Poll. Candidates Jim Gilmore, Duncan Hunter, Ron Paul and Tom Tancredo each received 1% responses in the South Carolina Poll (which had a margin of error of plus/minus 4%), the minimum percentage required by the Party and FOX News to participate in the Debate.
32. Based on the single South Carolina Poll of only 600 persons, any candidate who received at least 6 responses, that is six persons who said that they would vote for that candidate, received 1% of the poll results and was invited to the Debate.
33. The Party and FOX News relied on the South Carolina Poll and invited the following persons to participate in the Debate: Rudy Giuliani, John McCain, Mitt Romney, Sam Brownback, Mike Huckabee, Tommy Thompson, Jim Gilmore, Duncan Hunter, Ron Paul, and Tom Tancredo.
34. Had the Party and FOX News made their invitation decision based on the original criteria, at a minimum Jim Gilmore and Ron Paul would not have been invited For example, a later Fox News/Opinion Dynamics Poll conducted April 17-18, 2007, which sampled 900 registered voters nationwide, resulted in Jim Gilmore and Ron Paul each receiving a 0% response. A copy of this poll is attached hereto as Exhibit 3. Neither candidate garnered at least 1% in this national poll, the original debate criteria established by the Party and FOX News. But because each received exactly 1% in the South Carolina Poll, which amounted to a mere six individual responses, they were invited to Debate.
35. In the guise of inclusion, the Party and FOX News intentionally left Cox out of the Debate, by purposefully relying on an earlier poll in which Cox was not even identified as a candidate, knowing that Cox had reasonably strong success in several South Carolina county straw polls and was as viable candidate equally disserving to participate in the Debate.
36. Use of the South Carolina Poll was not only arbitrary, but was also improper. The South Carolina Poll was hardly recent, it was a month old. There were numerous state and national polls since the South Carolina Poll that could have been used. And the South Carolina Poll did not even identity Cox as a candidate. Without disclosing Cox's name, there was little prospect he would garner any polling support. As a viable announced candidate, Cox should have been identified along with all of the other candidates in the South Carolina Poll. He was not, and therefore the polling data was biased and inaccurate, and should not have been used by the Party and FOX News as the basis to qualify candidate participation in the Debate.
37. The South Carolina Poll was conducted before the South Carolina straw polls took place in the last few weeks, in which Cox showed significant results. He won one straw poll in an important county (Aiken) and came in second in McCormick County. Cox also polled reasonably well in other South Carolina counties. The Party and FOX News wholly ignored these polls, which had more significance than the South Carolina Poll.
38. By relying on a biased poll that it conducted, FOX News in concert with the Party, instead of fairly reporting the news, has manipulated the political process in this country by filtering who is and is not a "serious candidate."
Temporary Restraining Order and for Preliminary and Permanent Injunction under 42 U.SC. S 1983
39. Plaintiffs reallege and incorporate paragraphs 1 through 38 inclusive as if set fully herein.
40. Where a state employs restrictions on the ability of a candidate to run for public office, constitutional provisions of general application, such as the First and Fourteenth Amendments may be violated.
41. Section 1983 grants plaintiffs a cause of action for violations of the Fourteenth Amendment. 42 U.S.C. S 1983.
42. The Party and FOX News have restricted Cox's ability to run for political office in South Carolina by refusing to allow him to participate in the Debate, while allowing other candidates to participate based on arbitrary and biased criteria contrary to the criteria that the Party and FOX News established for Debate participation.
43. The Debate is a public forum created by purposeful governmental action; the Party's and FOX News' entwinement of the Debate with the governance of the South Carolina Republican Primary.
44. If the Party and FOX News exclude a speaker who falls within the class to which the Debate has been made available, their action is subject to strict scrutiny.
45. Defendants' exclusion of Cox from the Debate and the inclusion of other similarly situated candidates based on arbitrary and capricious criteria unconstitutionally violates Cox's equal protection rights under the Fourteenth Amendment and his First Amendment right of access.
46. Defendants' intentionally and purposefully discriminated against Cox by abandoning the original otherwise neutral criteria for Debate participation and using instead self-selective criteria that was biased towards candidates more publicly known than Cox so as to ensure that Cox would not be allowed to participate and that other candidates would be allowed to participate.
47. The Party's purposeful discrimination against Cox may be in part because of Cox's conservative political ideas, and his criticism of other Republican candidates in Cox's campaign literature circulated in South Carolina. Fox example, South Carolina National Republican Committee Woman, Cindy Kosta, who is a Mitt Romney supporter, recently argued with Cox over his campaign literature criticizing other candidates, particularly Romney. Kosta and others affiliated with the Party have vested interests in minimizing dissent within the Republican Party and excluding Cox from the Debate serves this purpose.
48. Plaintiffs have no adequate remedy at law and will be irreparably injured if Cox is prohibited from participating in the Debate. Cox's exclusion as a Debate participant will perpetuate the media's failure to identify Cox as a presidential candidate. Furthermore, Cox will be denied a public forum (that has been made available to all other Republican candidates that have timely filed for the South Carolina Primary) to be afforded the opportunity to make his views known to the electorate and to allow viewers to evaluate Cox as a candidate, which could have a profound impact on plaintiffs' ability to raise funds and continue Cox's presidential campaign.
Wherefore, plaintiff John H. Cox pray this Court:
1) Issue a temporary restraining order and preliminary injunction pursuant to Fed. R. Civ. P. 65, ordering defendants South Carolina Republican Party and Fox Network News, LLC d/b/a FOX News Channel, and all those in active concert or participation with them to refrain immediately and pending the final hearing and determination of this action from conducting the First-in-the-South Republican Party Presidential Candidates Debate scheduled to proceed on May 15, 2007 at 9 p.m. at the Koger Center for the Arts, Columbia, South Carolina;
2) Issue a permanent injunction perpetually enjoining and restraining defendants South Carolina Republican Party and Fox Network News, LLC d/b/a FOX News Channel, and all those in active concert or participation with them from conducting the First-in-the-South Republican Party Presidential Candidates Debate without John H. Cox as a debate participant; and
3) Award plaintiffs' attorneys' fees under 42 U.S.C. S 1988, costs and for any additional and further relief the Court deems appropriate.
49. Plaintiffs reallege and incorporate paragraphs 1 through 48 inclusive as if set fully herein.
50. An actual controversy exists between Cox and the Party and FOX News regarding whether Cox has met the criteria necessary to be included as a participant in the Debate.
Wherefore, plaintiff John H. Cox pray this Court:
1) Declare the rights of the parties concerning John H. Cox's eligibility to participate in the First-in-The-South Republican Party Presidential Candidates Debate scheduled to occur on May 15, 2007 at 9:00 p.m at the Koger Center for the Arts in Columbia, South Carolina; and
2) Award plaintiffs' attorney's fees under 42 U.S.C. S 1988, costs and for any additional and further relief the Court deems appropriate.
Dated: May__, 2007
JOHN H. COX and COX 2008 COMMITTEE, INC.,
One of their attorneys
Mark W. Hardee
1426 Richland Street
Columbia, South Carolina 29201
Christopher D. Oakes
Cox, Oakes & Associates, Ltd.
3330 Dundee Road, Suite S-3
Northbrook, Illinois 60062