McCalden v. California Library Ass'n

KOZINSKI, Circuit Judge,

with whom Circuit Judges ALARCON, REINHARDT and T.G. NELSON join,

dissenting from the order rejecting the suggestion for rehearing en banc.

This is a case of exceptional importance. What began as a political dispute among widely divergent factions has been converted into a lawsuit; thwarted in the political arena, plaintiff McCalden has chosen to continue the battle by dragging his adversaries into court. The fundamental question presented is how much — or rather how little — he need allege before the courts will entertain his case, putting the defendants to the burden, expense and risk of litigation.

The answer to this question is of profound significance at a time when civil litigation is anything but the “just, speedy, and inexpensive” process contemplated by the Federal Rules of Civil Procedure. The federal courts have recognized that lawsuits impinging on speech presumptively protected by the First Amendment are subject to far more stringent pleading requirements than ordinary lawsuits, precisely because protected speech is so precious — and so fragile — that it can easily be smothered under piles of document requests, depositions, interrogatories, requests for admission and the other ordnance in the modern litigator’s arsenal.

McCalden alleges repeatedly that the defendants used “threats of violence” to thwart him, and on that basis alone does the panel majority let him proceed with his lawsuit. Nowhere, however, does McCal-den give a single example of an actionable threat of violence. McCalden’s only elaboration on his will-o’-the-wisp allegations is that defendants were “threatening and organizing a demonstration which [they] knew and intended would create a reasonable probability of property damages and of violence.” Second Amended Complaint ¶ 32 (emphasis added). While genuine threats of violence are not constitutionally protected, I had thought it inconceivable, that one could be held liable for planning and organizing a political demonstration. By allowing McCalden to proceed with his lawsuit, my colleagues turn back the clock to the dark days of the not-so-distant past when the judicial process was routinely used to crush opposing viewpoints — an era I, like most observers, believed had ended with Brandenburg v. Ohio, 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 (1969).

Background

McCalden is a Holocaust revisionist. He proselytizes the view that the historical record of Nazis murdering millions of Jews and other civilians on account of their ethnic and religious affiliations is a hoax. In pursuit of his mission, McCalden contracted for exhibit space at the 1984 meeting of the California Library Association, and also planned to give a presentation there.

McCalden’s efforts did not go over well with those who were victims of the Holo *1227 caust, or whose families, friends or coreligionists were subjected to Nazi atrocities. Particularly incensed by McCalden’s proposed participation in the conference were the American Jewish Committee, the Simon Wiesenthal Center for Holocaust Studies and the Center’s director, Rabbi Marvin Hier (collectively Wiesenthal). McCalden alleges that the Wiesenthal defendants 1 took a series of actions designed to keep him from showing his exhibit or holding his presentation. He sued, raising a variety of state and federal claims; the district court dismissed them all. Rejecting defendants’ argument that their activities were protected by the First Amendment, the panel majority lets McCalden proceed on his claims for interference with contractual relations and under California’s Unruh Civil Rights Act, and remands for a determination whether McCalden has pleaded facts sufficient to support a claim under a federal civil rights statute, 42 U.S.C. § 1983 .

Discussion

A. Civil litigation is a tool for vindicating important rights, but it can also be a bludgeon for striking at political adversaries. See Grunwald v. San Bernardino City Unified School Dist., 917 F.2d 1223 , 1232-33 (9th Cir.1990) (Kozinski, J., dissenting). The classic example is New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), where the police commissioner of Montgomery, Alabama, sought to use state libel law to crush press support for the nascent civil rights movement in the South. See generally Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment ch. 5 (1991).

In case after case since Sullivan , the Supreme Court and our court have recognized that “the pall of fear and timidity imposed [by the threat of litigation] upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.” Sullivan, 376 U.S. at 278 , 84 S.Ct. at 725 ; see Oregon Natural Resources Council v. Mohla, 944 F.2d 531 , 533 (9th Cir.1991). The uncertainties inherent in our imperfect legal system, coupled with the often staggering out-of-pocket costs of obtaining even a favorable judgment, will necessarily do much to deter expression. See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect, ” 58 B.U.L.Rev. 685, 687-89, 694-701 (1978).

The federal courts have constructed an important series of safeguards to protect First Amendment speakers from such politically motivated litigation. Sullivan established the requirement that public officials plead and prove actual malice in libel cases. 376 U.S. at 279-80 , 84 S.Ct. at 726 . Bose Corp. v. Consumers Union, 466 U.S. 485, 503-11 , 104 S.Ct. 1949, 1961-65 , 80 L.Ed.2d 502 (1984), directs the courts of appeals to conduct an independent review of the record. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 , 108 S.Ct. 876, 882 , 99 L.Ed.2d 41 (1988), proscribes the use of a subjective standard “which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” And Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board, 542 F.2d 1076, 1082-83 (9th Cir.1976), establishes that “where a plaintiff seeks damages ... for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations [in the complaint] than would otherwise be required.”

McCalden’s complaint falls far short of the First Amendment’s specificity requirement. He alleges nothing — nothing at all — that could arguably place defendants’ speech outside the protective umbrella of the First Amendment: He does not claim that defendants threatened to break anybody’s kneecaps, or to plant a bomb, or to have goons set fire to his exhibit. If plaintiff wants to claim that speech uttered by *1228 defendants in pursuit of a political objective is extortion, he must allege facts that, if proven, would amount to extortion. 2 One searches McCalden’s 24-page complaint in vain for such allegations.

The panel majority’s offhanded treatment of this as an extortion case is perturbing. If these defendants — operating at the core of the First Amendment — can be subjected to a lawsuit for extortion based on a handful of conclusory allegations, one wonders and worries who else can so easily be dragged into the quagmire of litigation. The press, for example, is a fat target for suits based on vaguely worded complaints alleging “defamation,” “invasion of privacy” or some other speech not sheltered by the First Amendment. See Rodney Smolla, Suing the Press (1986). I had thought it inconceivable that a complaint by a public figure claiming nothing more than that he was “libeled with malice” would survive a motion to dismiss under Rule 12(b)(6). See, for example, Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151, 1154-57 (N.D.Cal.1983). Now I’m not so sure; if “threats of violence” is a talisman that can whisk a complaint past a motion to dismiss, why not “libel” and “malice” as well? My colleagues’ utter disregard for the First Amendment’s specificity requirement will bring a chill of discomfort to publishers, editors and political commentators subject to suit in the Ninth Circuit.

B. But we have here far more than merely the absence of specific allegations of unprotected speech: The speech McCal-den does specifically allege is fully protected. McCalden’s lengthy complaint makes it clear that he and the Wiesenthal defendants were locked in an intense political struggle, waged through the normal political channels: “[T]he sole purpose of [the Wiesenthal defendants’] action was to induce Defendant CLA by application of political pressure and threats of political sanctions to cancel its contracts with Plaintiff and to prevent Plaintiff from expressing his views to CLA members.” Second Amended Complaint U 37 (emphasis added). After describing how the Wiesenthal defendants used their political clout to get him kicked out of the CLA conference, 3 McCal-den gives his first and only hint as to what he is talking about when he alleges threats of violence: “[The Wiesenthal defendants] pressured Defendant CLA to cancel its contracts with Plaintiff by threatening and organizing a demonstration which [they] knew and intended would create a reasonable probability of property damage and of violence.” Id. ¶ 32 (emphasis added).

By letting McCalden proceed with a lawsuit that hinges on this allegation, the panel holds that a political organization can be sued for extortion on the basis of statements about a demonstration it intends to conduct at some time in the future. This is astonishing in light of Brandenburg , which held that a state may not prohibit “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U.S. at 447 , 89 S.Ct. at 1829 .

Since Brandenburg , the Supreme Court has given us more precise guidance in NAACP v. Claiborne Hardware Co., 458 U.S. 886 , 102 S.Ct. 3409 , 73 L.Ed.2d 1215 (1982). A local branch of the NAACP and concerned black citizens engaged in a boycott of white-owned stores to protest racial inequality. Charles Evers, one of the NAACP leaders, “stated that boycott violators would be ‘disciplined’ by their own people and warned that the Sheriff could not sleep with boycott violators at night.” Id. at 902 , 102 S.Ct. at 3420 . Evers was also quoted as saying: “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Id. *1229 The Court held that a politically motivated boycott was protected by the First Amendment, even where the boycott organizers made statements that might otherwise sound like threats of violence.

Public demonstrations often carry with them the risk of violence. A large group of individuals, united by a common cause and motivated by strong emotions, can get out of control, causing property damage or injury. This is a risk we endure as part of life in a free society; it is not a sufficient reason — and I hope it never will become one — to stifle concerted public expression. If the propensity of large groups of angry people to harm property (and sometimes each other) is sufficient to give the target a cause of action against the organizers of the protest, we will have done much to silence the “vehement, caustic, and sometimes unpleasantly sharp attacks” heretofore protected by the First Amendment. See Sullivan, 376 U.S. at 270 , 84 S.Ct. at 721 .

What the Supreme Court recognized in Claiborne Hardware and Brandenburg is that strongly held political views engage the emotions as well as the intellect, and that the participants will often make statements that — taken out of context — sound a lot like threats of violence. “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases.” Claiborne Hardware, 458 U.S. at 928 , 102 S.Ct. at 3434 ; see also id. at 927 , 102 S.Ct. at 3433 (“mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment”) (emphasis in original). As Judge Easterbrook has explained, “[cjases such as [Brandenburg ] and [Claiborne Hardware ] hold that a state may not penalize speech that does not cause immediate injury.” American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 333 (7th Cir.1985), affirmed, 475 U.S. 1001 , 106 S.Ct. 1172 , 89 L.Ed.2d 291 (1986). 4

In a belated amendment to its opinion, the panel majority brushes aside Brandenburg and Claiborne Hardware as cases “involving] public speeches advocating violence, not privately communicated threats of violence as are alleged here.” Majority at 1222. My colleagues read these cases far too parsimoniously. What matters for purposes of the First Amendment is not whether the statements are uttered in public or in private, but whether — on the basis of what is alleged in the complaint — the speech in question can fairly be characterized as extortion. Cf. Watts v. United States, 394 U.S. 705, 707 , 89 S.Ct. 1399, 1401 , 22 L.Ed.2d 664 (1969) (per curiam) (reversing conviction for hyperbolic statement about shooting President Johnson: “What is a threat must be distinguished from what is constitutionally protected speech.”). 5 Where the lawsuit grows out of a political dispute, Claiborne Hardware teaches that we must be extremely chary of letting one side characterize the other *1230 side’s angry, sometimes menacing, statements as threats of violence actionable under state law. The political context of the statements matters a great deal.

The context here is framed by plaintiffs complaint. Defendants are the American Jewish Committee, the Simon Wiesenthal Center and Rabbi Marvin Hier: two organizations and an individual deeply committed to a political cause — remembrance of the Holocaust and its horrors — not back-alley thugs. Their statements were aimed at achieving a political objective, not exacting protection payments. Read in its entirety, not by plucking phrases out of context, McCalden’s complaint alleges nothing more than the type of “uninhibited, robust, and wide-open” debate on public issues the First Amendment protects. See Sullivan, 376 U.S. at 270 , 84 S.Ct. at 721 . 6 By dismissing Brandenburg and Claiborne Hardware in a few scant phrases, my colleagues deliver a body blow to the principle that “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 , 103 S.Ct. 1684, 1689 , 75 L.Ed.2d 708 (1983) (quoting Claiborne Hardware, 458 U.S. at 913 , 102 S.Ct. at 3425 ).

Conclusion

No one disputes McCalden’s right to say his piece, repugnant though his message be. The federal courts have a long and proud tradition of protecting the right of individuals with unpopular points of view to express themselves publicly even where this subjects onlookers to intense discomfort, even anger. More than a decade ago, for example, neo-Nazis were allowed to march through the streets of Skokie, Illinois, raising a nationwide furor. See Samuel Walker, In Defense of American Liberties: A History of the ACLU 323-31 (1990). See also Texas v. Johnson, 491 U.S. 397 , 109 S.Ct. 2533 , 105 L.Ed.2d 342 (1989) (flag burning); Wooley v. Maynard, 430 U.S. 705 , 97 S.Ct. 1428 , 51 L.Ed.2d 752 (1977) (covering up patriotic motto on license plate); Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971) (profane political slogan). The discomfort and anger such speech generates is often a crucial part of the message, because effective political advocacy seeks to arouse the emotions, not merely the intellect. As the Supreme Court noted in Johnson : “ ‘[Free speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ ” 491 U.S. at 408-09 , 109 S.Ct. at 2541 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 , 69 S.Ct. 894, 896 , 93 L.Ed. 1131 (1949)). This is all as it should be. 7

Surely, however, we may not withhold the same privilege of uninhibited, emotionally charged expression from the targets of McCalden’s attack. Those who carry the mark of Auschwitz tattooed on their forearms, or who survived Treblinka, Dachau or Buchenwald; who were hunted down like animals in the streets of Warsaw; who saw loved ones perish during Kristallnacht or in frozen boxcars on their way to the death camps that are the shame and horror of modern times — they cannot be expected to react calmly, with deliberation, with gentility to one who would tarnish the memory of those butchered in the Holocaust by pretending the whole thing never hap *1231 pened. See Alan M. Dershowitz, Chutzpah ch. V (1991). 8 Surely their anger, their disgust, their anguish also has a protected place in the wide-open arena of our public discourse. To let plaintiff use a state civil rights statute (and possibly a federal one as well) to punish these defendants for threatening to hold a demonstration voicing their righteous indignation is not only a perversion of those civil rights laws, it is also a devaluation of the precious rights granted all of us by the First Amendment.

Because I believe the court is perpetrating a grave injustice by allowing this unfortunate precedent to be enshrined as the law of the circuit, I respectfully dissent from the refusal to rehear this case en banc.

. McCalden also sued the Library Association, the City of Los Angeles and the hotel in which the meeting was held; my concern here, however, is only with the Wiesenthal defendants.

. Commenting on a closely analogous situation, Professor Tribe notes that “more is needed than a ritual incantation of the word ‘incitement’ before civil or criminal damages may be assessed on the basis of speech.” Laurence H. Tribe, American Constitutional Law 849 n. 58 (2d ed. 1988);

. Wiesenthal’s methods, as described at length in the complaint, included meeting with Library Association officials, seeking the support of the city council, renting a conference room next to McCalden's and disseminating information about McCalden’s program to other Jewish organizations. Id. ¶¶ 22-39 .

. Judge Easterbrook also noted:

Much speech is dangerous. Chemists whose work might help someone build a bomb, political theorists whose papers might start political movements that lead to riots, speakers whose ideas attract violent protesters, all these and more leave loss in their wake. Unless the remedy is very closely confined, it could be more dangerous to speech than all the libel judgments in history.

Id. at 333 . Words my colleagues would do well to heed.

. Writing for the Seventh Circuit en banc, Judge Posner interpreted Brandenburg, Claiborne Hardware, Watts and other Supreme Court cases to cover situations far more extreme than that here:

If ... a new sect of religious fanatics announced that unless Chicagoans renounce their sinful ways it may become necessary to poison the city’s water supply, or a newly organized group of white supremacists vowed to take revenge on Chicago for electing a black mayor, these statements, made by groups with no "track record” of violent acts, might well be privileged. Or suppose the leaders of a newly formed organization of Puerto Rican separatists went around Chicago making speeches to the effect that, if the United States does not grant Puerto Rico independence soon, it will be necessary to begin terrorist activities on the mainland United States. These speeches could not, in all probability, be made the basis of a prosecution.

Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1014 (7th Cir.1984) (en banc) (citations omitted). In light of Alliance to End Repression and Hudnut , there is little doubt this case would have come out differently had it been brought in the Seventh Circuit.

. In achieving their objectives, defendants expressed their angry disagreement with plaintiffs point of view, and let others know they would be there to protest if McCalden were allowed to participate in the Library Association conference. This no doubt put pressure on the Library Association, which had every interest in avoiding a demonstration that would disrupt its proceedings. But threatening to disrupt an event because it features a speaker to whom protestors object is a common tactic, and has never been held to be actionable. See Alan M. Dershowitz, Taking Liberties 47-49, 166-68 (1988) (discussing hecklers and demonstrators).

. Indeed, this is all as it must be. Were we to allow limitations on speech because it offends community sensibilities, we would eviscerate the anti-majoritarian protections of the First Amendment. See Martin H. Redish and Gary Lippman, Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications, 79 Cal.L.Rev. 267, 297-304 (1991); see generally Lee C. Bollinger, The Tolerant Society (1986).

. Professor Dershowitz points out the profound significance of the Holocaust: "The Holocaust changed the nature of Judaism and of Jews forever. It changed the way Jews look at non-Jews, and vice versa. It changed the way every compassionate person views justice and injustice. It should challenge the faith of every thinking being.” Id at 130. Wiesenthal's intense — and not particularly tolerant — reaction must be understood in light of this reality.