Petition — Hammerhead Enterprises, Inc. v. Brezenoff

Office - Supreme Court. U.S

Y FILED

I= THE SUPREME COURT] !

OF THE UNITD STATES | ; JUL 286 1983

i

OCTOBER TERM, 198_ [| ALEXANDER L. sTevas

NO. o 127

HAMMERHEAD ENTERPRISES, INC.

RONALD PRAMSCHUFER AND ROBERT JOHNSON

Petitioners

VS.

STANLEY BREZENOFF, MAYOR AND CITY COUNCIL

AND THE CITY OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

David Tichane, Esquire

401 Broadway

Suite 711

New York, New York 10013

Earl L. Carey, Jr., Esquire

Luther C. West, Esquire

WEST, CAREY, FRAME & BARNSTEIN

Suite 3203 - 222 St. Paul Place

Baltimore, Maryland 21202

301-837-3120

INDEX

Page

Opinions Below ..ecccccce 2

JUTISAICTION...cccccee 2

Question Presented... 3

Constitutional and Statutory Provisions Involved..... 3

Statement Of Case.eccccceee -

The Evidenceseccccsseee 3

The Rulings Below.....c...e 12

Reasons for Granting the Writ......0««s 13

CONCIUSIONseescecees 17

APPENDIX A

Opinion of District Court..cccccces A-l

Opinion of Second Circuit....cccoce A-47

TABLE OF CASES

Minnesota Star and Tribune Co. v. Minnesota 15

Commissioner of Revenue, Slip Opinion,

Supreme Court of the United States, Case

No. 81-1839 decided March 28, 1983 ...ccccces

NAACP Ve Button, 37 US. 415 i 15

STATUTES

42 U.S.C. 6 19S 3 ccccoccece 5

28 USC. § 1343(3) & | 5

Statutes (con't.)

Page

28 USC. G1250( 1 Jeccccccces 2

28 U.S.C. §2101(c)eveseceeee 3

ii

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 198

NO.

HAMMERHEAD ENTERPRISES, INC.

RONALD PRAMSCHUFER AND ROBERT JOHNSON

Petitioners

VS.

STANLEY BREZENOFF, MAYOR AND CITY COUNCIL

AND THE CITY OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, the Chief Justice and Associ-

ate Justices of the Supreme Court of the United

States:

Petitioners respectfully pray that a= writ

of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second

Circuit in this matter entered in the above case

on April 28, 1983.

OPINIONS BELOW

The April 28, 1983 opinion of the Court of

Appeals, whose judgment is herein sought to be re-

viewed, is reported in a slip decision of the Second

Circuit, Docket No. 83-7014, decided April 28, 1983,

and is reprinted in the separate Appendix to this

Petition, pp A-l-A46. The prior opinion of the United

States District Court for the Southern District of

New York, also reprinted in the Appendix, pp A-

47-A-63 , is reported below as Hammerhead, et al.

v. Brezenoff, et al. 551 F. Supp. 1360 (S.D.N.Y.

1982).

JURISDICTION

The judgment of the Court of Appeals was

entered on April 28, 1983. The jurisdiction of this

Court is involved pursuant to 28 U.S.C. 1254 (1),

2

and 2101(c).

QUESTION PRESENTED

Should highly placed municipal bureaucrats,

via private, non-public channels of communication,

under the guise of First Amendment rights of their

own be permitted to stifle the First Amendment

rights of others who seek to publish their views

on highly controversial public issues, which touch

upon and contradict the views and philosophy es-

oused by the bureaucrat's own municipal agency?

P y P 8

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First Amendment and

the first section of the Fourteenth Amendment which

provide as follows:

Amendment I

Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise thereof;

or abridging the freedom of speech,

or of the press; or the right of the

people peaceably to assemble, and

to petition the Government for a redress

of grievances.

Amendment XIV

3

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof,

are citizens of the United States and

of the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; mor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

This was an action brought by Hammerhead,

Inc., | and by Messers Pramschufer and Johnson, i.e.,

the inventors, ownersand manufacturers of a _ board

game entitled "Public Assistance, Why Bother Working

for a Living?", to enjoin the unconstitutional, libelous

and tortuous actions of the head of New York City's

Human Resources Administration, and for damages

against the administrator and the City of New York,

following the discovery of an offending letter written

by the administrator to certain commercial store

I. There are no parent companies, or subsidiaries

of affiliates of Hammerhead Enterprises, Inc.

4

chains in the New York City area, which allegedly

asked these chains to ban or boycott the game in-

volved. The action was brought under 28 U.S.C. §1343

(3) and (4), and 42 U.S.C. §1983.

THE EVIDENCE

The evidence reveals that Stanley Brezenoff,

the "“Administrator/Commissioner" (i.e., the head

or chief) of New York City's Human Resources Admini-

stration (a multi-billion dollar City welfare agency)

wrote an official letter to the heads of 13 leading

American department, book and toy chain stores,

all but one of whom were headquartered in New York

City, on the letterhead stationery of his agency,

which clearly identified the writer as the head of

the agency concerned; and as the head of the agency

involved he officially requested the recipients of

the letter to refrain from carrying a new board game

entitled "Public Assistance, Why Bother Working for

a Living?" Mr. Brezenoff stated the game unfairly

slammed welfare recipients, did a "grave injustice

to taxpayers and welfare clients alike," and was in-

sensitive and shoddy and a discredit to its manufact-

5

urer and marketeers. He further advised the stores

that their "cooperation" in "keeping this game off

the shelves of your stores would be a genuine public

service". Mr. Brezenoff made no public disclosure

of the letter, to the public or press or to the owners

of the game, but did send a copy of his letter to

Mr. Edward T. Weaver, Executive Director of the

American Public Welfare Association, who at the

same time involved, had published a newsletter which

strongly condemned the game and which outlined

a similar plan of action to keep it off the market

nationwide.

The evidence further revealed that the inventors

of the game, who were unemployed themselves at

the time, invented, published and marketed the game

in the fall of 1980. The game itself was a mockery,

or a satire, of the American welfare system. It showed

that welfare recipients reaped welfare benefits pri-

marily from their refusal to work, from overpayments

and fraud, and often engaged in other side-line ciminal

activity such as prostitution, hub-cap thievery, and

illicit drug transactions. The working people of

6

America were depicted in the game as the dupes

of the system, who were forced to pay for the scam

by their honest toil and tax dollars. The game also

depicted welfare administrators and officials in a

very poor light. They were shown to be lazy, very

tolerant of fraud, and willing to handout billions

of dollars of public money, and moreover eager to

justify their own ever increasing salaries, all on the

basis that they were rendering assistance to the poor.

The evidence further revealed that the "contro-

versial" aspect of the game was quickly picked up

by the news-media. Patricia Harris, Secretary of

Health and Human Services publicly called the game

"callous, racist and sexist." The National Organization

of Women condemned it; the NAACP recommended

it be banned. The inventors of the game soon found

themselves on the Donahue Show, as well as numerous

lesser radio and TV talk shows; and the subject matter

of hundreds of newspaper stories across America.

Articles also appeared about the game in London,

Canada and Puerto Rico.

It was at this time that Mr. Brezenoff, fearing

7

that the game might adversely affect pending legisla-

tion in Albany that was designed to increase welfare

grants (and welfare administrators' salaries) wrote

to the heads of 13 department, book and toy stores

in New York City, on the official letterhead stationery

of his City agency and, as the Commissioner thereof,

su_cested it would be in the public interest not to

sell the game. Macy's department store, one of the

recipients of the letter, promptly cancelled their

order, and returned their unsold games to the owners.

Thereafter, while the game quickly became a bestseller

in small "mom and pop" stores across America and

was hailed in the press and game and trade journals

as an innovative, best seller, not one of the 660 depart-

ment stores, bookstores, or toy stores owned or control-

led by the recipients of the Brezenoff letter, or the

2500 stores who used the same "buying services"

as those utilized by the 13 New York Stores that

received the Brezenoff letter, purchased the game

2

during the next ten to twelve months.

2. Mr. Brezenoff admitted during his deposition (which

was received in evidence) that he knew the stores

to which he forwarded his letter were chain stores,

8

In the meanwhile, three months after the

Brezenoff letter was mailed, an inquiring news reporter

discovered the existence of the letter and finally

forced Mr. Brezenoff's office to release a copy of

it through the Freedom of Information Act, after

repeated calls to Mr. Brezenoff's office for a voluntary

submission of the letter failed to produce the letter

in question. It was at this time, through the actions

of the press, that the owners were first made aware

of the existence of the Brezenoff letter. After the

present law suit was filed the owners via judicial

discovery, were first furnished a list of the addresses

of the letter in question. It was not until this time,

after the rush of free media publicity of their game

had subsided and after the demand for the game

had peaked, that the owners were first able to con-

vince two of the recipients of the letter to carry

2. con't. and that his intent was to hurt the game

not just in New York, but nationally. At the trial

of the case, however, the question of damages was

not litigated. Pursuant to order of the trial court,

the trial was bifurcated, and only the issue of liability

was litigated.

their product.

Despite repeated and pointed questions during

the interrogatory stage of the law suit Mr. Brezenoff

denied and repeatedly denied that he had knowledge

of other efforts to ban the game, or that he had

communicated with organizations or individuals regard-

ing efforts to suppress the game. Specifically, he

did not identify his "note" to Mr. Weaver, or the

existence of Mr. Weaver (the Executive Director

of the American Public Welfare Association), until

the final day of trial when he was asked point blank

on cross-examination if he knew Mr. Weaver, and

if he had seen Mr. Weaver's "newsletter." It was

only at that time that he first admitted that he knew

Mr. Weaver, ~..d that he was aware of his newsletter

soliciting association members to ban the game; and

it was not until this time that he finally admitted

that he sent Mr. Weaver a copy of his letter to the

13 stores in question. Moreover, it was not until

the appeal of the case to the Second Circuit, that

the defendant's attorney first produced a copy of

Mr. Brezenoff's "note" to Mr. Weaver, when the at-

10

torney handed a copy of the letter to the Court of

Appeals during the argument of this appeal.

On the element of the implied threat or the

possibility of such a threat in the Brezenoff letter

to the 13 stores in question, the appellants proffered

testimony of two witnesses, Michael Kilbert and Wallis

Cooper, both of whom were on the witness stand

at the time and who were long time owner-operators

of two of the largest independent game and book

stores in New York City, to the effect that though

they were not addressees of the Brezenoff letter,

they considered it threatening. It was further proffered

that Mr. Kilbert would have testified that while he

was not a recipient of the letter, had he known even

that it existed he would have pulled the game from

his shelves, even though it was a bestseller, as he

viewed the Brezenoff letter as an implied threat

from the City of New York. The trial court rejected

both offers of proof. Mr. Michael Botti, a buyer for

Brentano's testified that Brentano's was a recipient

of the Brezenoff letter in the fall of 1980, and was

considering carrying the game at that time but did

11

not do so because it felt threatened by the Brezenoff

letter. The trial court found, however, that his testi-

mony was not credible. The Court based its opinion

in this regard on an effacive and self deprecating

letter from the fo.mer president of Brentano's to

Mr. Brezenoff shortly after the receipt of the Brezen-

off letter in question, wherein the owner assured

Mr. Brezenoff that Brentano's would "never" carry

such a vile game as "Public Assistance."?

THE RULINGS BELOW

The District Court in this case ruled that

Mr. Brezenoff wrote his letter in good faith because

of his "concern for and support of the concept of

public assistance." See page 9 of the trial court's

decision, attached hereto at Appendix, p. A-14. The

District Court also found that Mr. Brezenoff had,

as a public official, the right to engage in free speech

3. "Never" lasted less than a year. After appellants

discovered in the fall of 1981 that Brentano's had

received a copy of the Brezenoff letter, they con-

tacted the store and persuaded it to resist the City's

effort to ban the game and to carry the game in

their stores.

12

of his own, and as such, the letter was not censorship,

but was an “appeal to conscience and decency."

See Appendix, p.A-42.

The Court of Appeals declined to address

the First Amendment issue of Mr. Brezenoff's own

right to speak, since it found there was no constitu-

tional violation. See n.6, Court of Appeals' decision,

Appendix, p. A-59 . The Court of Appeals held the

letter was "nothing more than a well-reasoned and

sincere entreaty in support of (Mr. Brezenoff's)

political perspective." And while the Court of Appeals

shared the trial court's finding that the letter was

"an appeal to conscience and decency" it stated

that it would be equally immune from the appellants'

challenge had it "been based on the views of a society

which this or any court found wholly repugnant."

See Appendix, p A-59.

REASONS FOR GRANTING THE WRIT

This Court should grant the writ because

this decision poses a problem of tremendous magnitude

for constitutional jurisprudence in this country,

namely: should govenment bureaucrats under the

13

guise of First Amendment rights of their own be

permitted to stifle the First Amendment rights of

others who wish to publish their views on highly

controversial public issues, which touch upon or

contradict the views and philosophy espoused by

the bureaucrat's own agency? To permit such censor-

ship by Government bureaucrats, who could send

out “private” letters similar to Brezenoff's would

appear to invite disaster. Under this thinly veiled

demagogy the Secretary of Defense could send a

"private" letter on Department of Defense stationery

to national book chains suggesting that it would

be in the public interest to remove a particular

book from the market place because it was critical

of American involvement in El Salvador, or of the

nuclear arms build-up, and was, in the opinion of

the Secretary, scurrilous, unconscionable and indecent.

Or the same type letter might come from the FBI

director, or local police chiefs, the mayors of various

cities, etc., soliciting "cooperation" in keeping cer-

tain views out of the market place, such as the

views of the NAACP, environmental groups, or right-

“14

to-lifers, etc.

In sum, whatever the poltical persuasion or

however scurrilous or outrageous or holier than

thou the writing may be, "the possibility of error

inherent in the proposed (rule of law as sanctioned

in the present case) poses too great a threat to

concerns at the heart of the First Amendment, and

we cannot tolerate that possiblity." Minneapolis

Star and Tribune Co. v. Minnesota Commissioner

of Revenue, Slip Opinion, Supreme Court of the

United States, at p. 15 (Case No. 81-1839, decided

March 29, 1983). Or, as stated in NAACP vy. Button,

371 U.S. 415, 433 (1963): "The threat of sanctions

may deter (the) exercise of (First Amendment) rights

almost as potently as the actual application of sanc-

tions."

Thus, in the present case, the possibility

of recipients reading a threat into Mr. Brezenoff's

invitation to join the City (i.e., to "cooperate") in

removing the game from store shelves, is as potent

a poison of the plaintiffs' First Amendment rights

as if the threat had been expressed in plain and

15

unambiguous language. It is the likelihood or possi-

bility of stores being willing to remove only one

“offensive” item from their shelves, and _ thereby

keep on good terms with high placed City officials,

that is highly dangerous here. The loss of one item

to the store is inconsequential; whereas the _ loss

of the City's good graces could be disasterous. Thus,

it is the possibility that some recipients of such

a letter might interpret it as a threat, and thereby

remove the article from their shelves, that renders

Mr. Brezenoff's letter highly offensive to First

Amendment rights. It is the possibility of future

letters from other government bureaucrats to other

publishers and sellers of books and printed matter,

etc., plus the likelihood, or again the possibility,

that recipients of such future letters of this nature

might well view the letters as threatening, and might

thus remove such "offensive" printed data from their

shelves in order to remain in the good graces of

the bureaucrats involved that renders it imperative

that this Court strike down this potential threat

to First Amendment rights.

16

The rule of law as sanctioned in the present

case furthermore allows government bureaucrats

desiring to stifle the expression of antigovernment

Opinion to achieve their aim by working through

and with a censorship campaign planned and

implemented by an association of public agencies

(the APWA here) calling itself "private", but

which in truth represents the precise interests

of the government bureaucrats. As the law now

stands, these same censorship-minded bureaucrats

may take actions in accord with this "private"

censorship campaign, communicate with the di-

rector of it about actions taken, and yet remain

immune from damages although the net effect

be the same as if the bureaucrats had designed

and directed the censorship campaign themselves.

Further, if the Second Circuit ruling stands,

lying by government officials about connections

with such "private" censorship efforts in the

discovery stage - giving the government a con-

cealed advantage throughout the rest of the

trial - will be officially sanctioned, and even

encouraged.

17

CONCLUSION

Wherefore, Petitioners pray that a writ of

certiorari be granted.

Respectfully submitted,

David Tichane, Esquire

401 Broadway

Suite 711

New York, New York _10013

ad // tf 2.5

Ct ak oN ( 4 Adee ely

Earl L. Carey, Jr., Esquire if =

Luther C. West, Esquire

WEST, CAREY, FRAME & BARNSTEIN

Suite 3202

222 St. Paul Place

Baltimore, Maryland 21202

301-837-3120

Attorneys for Petitioners

18

CERTIFICATE OF SERVICE

I, Ear! L. Carey, Jr., a member of the Bar

of the Supreme Court of the United States and coun-

sel of record for Hammerhead Enterprises, Inc.,

and Messers Pramschufer and Johnson, hereby certify,

that pursuant to Rule 33, Rules of the Supreme

Court, I served three copies of the foregoing Petition

for a Writ of Certiorari on each of the defendant

appellees herein by mailing said copies, postage

prepaid, to the counsel of record for such parties,

ie., George Gutwirth, Esquire, Office of the Corpor-

ation Counsel, 100 Church Street, N.Y., N.Y., on

this_Q. 50h day of July, 1983.

All parties required to be served have thus

St (ssl

been served.

on

Earl ——} 7 Esquire \. |

WEST, CAREY, FRAME & BARNSTEIN

Suite 3203

222 St. Paul Place

Baltimore, Maryland 21202

301-837-3120

19

APPENDIX

UNITED STATES DISTRICT COURT

81 Civ.

SOUTHERN DISTRICT OF NEW YORK

3054 (MP)

HAMMERHEAD ENTERPRISES, INC. :

RONALD PRAMSCHUFER, and ROBERT JOHNSON,

Plaintiffs, :

Vv.

STANLEY BREZENOFF, MAYOR and CITY :

COUNCIL, and THE CITY OF NEW YORK,

Defendants. :

DECISION AND OPINION

APPEARANCES:

LUTHER C. WEST, ESQ.

Attorney for Plaintiff

507 Maryland Trust Building

Calvert & Redwood Streets

Baltimore, MD 21202

DAVID TICHANE, ESQ.

Attorney for Plaintiff

16 Court Street, Suite 3306

Brooklyn, NY 11241

FREDERICK A.O. SCHWARZ, JR.

Attorney for Defendant

Corporation Counsel

100 Church Street

New York, NY 10007

A-1

By: George Gutwirth, Esq.

Milton Pollack, District Judge.

This suit was instituted for in-

junctive relief and compensatory and pun-

itive damages for alleged defamation, and

interference with commercial relations

and free speech. The claims were heard

at a Bench trial without a jury. Juris-

diction of the Court is posited on diver-

sity, 28 U.S.C. 8 1332, and Civil Rights

42 U.S.C. 8 1983, 28 U.S.C. 88 1343 (3)

and (4).

The Claims Asserted

On May 20, 1981, plaintiffs insti-

tuted this suit against Stanley Brezenoff,

individually and in his official capacity

as Administrator of the Human Resources

Administration and Commissioner of Social

Services of the City of New York, against

the Mayor and the City Council of New

York City and against the City of New

A-2

York.

The occasion for the suit was a

letter written about an adult parlor game

created and marketed by the plaintiffs.

On November 5, 1980, Mr. Brezenoff sent

a letter to the chief executive officers

of thirteen department, toy and book

stores with headquarters in the greater

New York area. Mr. Brezenoff's letter+/

criticizes a so-called "spoof" -- a board

game entitled, "Public Assistance: Why

Bother Working for a Living?" (Public

Assistance) which was invented,

l/ The text of the letter read as fol-

lows:

As you may know, there is a new

board game on the national retail market

called "Public Assistance." I am writing

to urge that [ ] refrain from car-

rying this game in its stores.

"Public Assistance" is not, as its

inventors claim, a harmless spoof of wel-

fare cheats and liberal government bu-

reaucrats. It is an ugly and damaging

Slam at this society's poorest citizens,

60 percent of whom are children.

A-3

manufactured and marketed by the plain-

TGon*t7

York city ng ch Me 5) Ae Stade “ita

food stamp benefits of $374 a month to

cover everything -- food, clothing, util-

ities, carfare, and other necessities --

except rent and medical care. That works

out to about $3.01 per person per day.

The maximum the family can receive for

rent is $218 monthly.

Besides lampooning the painful fi-

nancial situation of those who struggle

to get by on that amount in this economy,

the game also denigrates the very real

progress over the past decade in reform-

ing administration and management of the

welfare system. Locally, error rates in

payment and eligibility are now a frac-

tion of what they were just seven years

ago; caseloads are down to their lowest

levels since 1972; and more able-bodied

welfare recipients are being removed from

the rolls and put to work in productive

jobs than at any other time in the City's

history.

The system is still imperfect, but

we are working hard to improve it, and

the "welfare mess" of the old days is

gone.

By perpetuating outdated myths, I

believe the "Public Assistance" game does

a grave injustice to taxpayers and wel-

fare clients alike; by its insensitivity

and plain shoddiness, it is a discredit

to those associated with its manufacture

and marketing.

Your cooperation in keeping this

game off the shelves of your stores would

be a genuine public service.

A-4

tiffs, Ronald Pramschufer, Robert Johnson,

and Hammerhead Enterprises, tne. 2/

At the close of trial, the Court

dismissed the claims against the Mayor of

New York City, the City Council, and the

City of New York as defendants; no evi-

dence was adduced that these parties knew

of the letter or were involved in the

events leading to this dispute; what evi-

dence there was in these areas was con-

clusive that those defendants had no

knowledge or involvement in any of the

matters dealt with herein. Decision was

reserved as to the individual liability

of Mr. Brezenoff, who, being the only one

I Con"t7 With thanks and best wishes

Sincerely,

Stanley Brezenoff

Administrator/Commissioner

2/ _Hanmerhead is a Maryland corporation

created for the purpose of inventing and selling

board games.

remaining before the Court will be re-

ferred to as the defendant.

The proof presented at the trial

consisted of testimony of witnesses, dep-

ositions and exhibits. On due delibera-

tion and weighing the evidence, circum-

stances and probabilities and assessing

the credibility of witnesses, judgement

must be entered in favor of the defendant

due to the failure of the plaintiffs to

carry their burden of proof to establish

any of their claims by a fair preponder-

ance of the credible evidence.

I. The Game

"Public Assistance" falls into the

broad genre of parlor board games epit-

omized by "Monopoly". While circling the

playing board, each player attempts to

accumulate simulated money by remaining

on welfare and avoiding work. Plaintiffs

describe their game as a "spoof", "a

A-6

commercial satire" on the welfare system

in that it lampoons able-bodied welfare

recipients and public administrators. In

essence, in Mr. Brezenoff's opinion, the

game portrays welfare clients as lazy,

loafing, intoxicated, dishonest, and pro-

miscuous, describes welfare administra-

tors as lazy dupes of the clients; and

suggests that politicians indiscriminate-

ly heap benefits upon welfare recipients.

The game also plainly makes derogatory

reference to “ethnic lawyers" and "land-

lords", to crime as an income supplement

to welfare benefits and to the financial

benefits under the welfare system of hav-

ing illegitimate children. Plaintiffs

have stipulated that they have no exper-

tise in welfare matters; that they do not

consider themselves experts, or even

knowledgeable about welfare issues.

At the games' inception in the

early fall of 1980, the plaintiffs did

A-7

not allocate any funds for advertising

nor did they have a formal marketing or

media strategy. Nonetheless, plaintiffs

testified that they hoped and anticipated

that some individuals would enjoy and

support the game while others would op-

pose it. Plaintiff Johnson testified

that the game concerned a great public

issue in this country and that it would

elicit response. Plaintiffs attempted to

evoke this response in October 1980 by

contacting local Maryland newspapers to

request that they publish articles con-

cerning the game. Moreover, Mr. James

Dunnigan, plaintiffs' expert on the mar-

keting of games testified that the game

was highly marketable due to its con-

troversial nature: it would appeal to

some and turn others off.

Some of those who were turned off

publicly voiced their opposition, dis-

A-8

pleasure and disgust concerning the game

and its tart message prior to November 5,

1980. Secretary of Health and Human Re-

sources, Patricia Harris, publicly de-

plored the game "as callous, sexist and

racist," and as a "vicious brand of ster-

eotyping". Carl Snowden, a leader of a

local anti-poverty group in Annapolis,

Maryland, pronounced the game "obnoxious

and close to bordering on racism".

Snowden was quoted as calling for the

Maryland and Washington National Associ-

ation for the Advancement of Colored Peo-

ple to consider a boycott of the game.

The game has attracted negative comment

from the National Organization for Women

and from the National Association of

Social Workers.

The game, plaintiffs' statements

to the media and the above and other

public reactions generated widespread

media coverage of the controversy sur-

A-9

rounding the game. Stories concerning

the game and its criticism were reported

locally in many cities and nationally by

the Associated Press. Plaintiff Johnson

and Carl Snowden appeared on the nation-

ally televised "Donahue segment" of the

"Today Show" prior to November 5, 1980 to

comment and be interviewed on the game

and the political and social views es-

poused thereby. Some of the media cover-

age mentioned possible boycotts of the

game.

The individual plaintiffs both

testified that they believed that the

statements found on the game board and on

cards contained in the game -- in their

opinion -- accurately or nearly accurate-

ly portrayed abuses that existed in the

welfare system. They further contended

that they sought to exploit and lampoon

these alleged abuses to make money from

the sale of their game.

A-10

Based on the exhibits, the testi-

mony of witnesses including that of the

plaintiffs and an assessment of the

credibility of that testimony, the Court

finds that by the plaintiffs' own con-

duct they have thrust themselves into

the general public controversy and its

political and social ramifications con-

cerning welfare and into the forefront of

the specific public controversy concern-

ing the appropriateness and good taste of

board games and pretended "spoofs" that

reflected on and criticized the recip-

ients of and manner in which public

assistance is afforded, administered and

used. Plaintiffs' purpose was to foment

that controversy by taking a distinct po-

litical and social position in order to

influence and augment sales of the game.

During the fall of 1980, the plaintiffs

had repeated and continuing access to lo-

A-1ll

cal and national media and were in po-

sition to promote and defend their game

against attacks.

II. Purpose and Intent of the Brezenoff

Letter

Acting on his own initiative, with

the editorial assistance of his secre-

tary, Stanley Brezenoff, on his official

stationery of Administrator/Commissioner

of the Human Resources Administration,

wrote the form letter quoted at footnote

1 above to thirteen chief executives of

retail establishments consisting of de-

partment, toy and book stores in New York

City area on November 5, 1980.2/ On its

face there is nothing libelous in the

3/ The stores are: Abraham and Strauss;

Alexander's; B. Altman & Co.; Blooming-

dales; Gimbel's; Hammacher-Schlemmer;

Lord & Taylor; Macy's; Saks Fifth Avenue;

F.A.O. Schwartz; Brentano's; Barnes and

Noble; and Toys-R-Us.

a 12

the letter, nor are the words and phrases

defamatory or those normally used to in-

timidate or threaten. The plaintiffs

nonetheless claim to be particularly of-

fended by the last two paragraphs of the

letter:

By perpetuating outdated myths, I

believe the "Public Assistance"

game does a grave injustice to

taxpayers and welfare clients a-

like; by its insensitivity and

plain shoddiness, it is a dis-

credit to those associated with

its manufacture and marketing.

Your cooperation in keeping this

game off the shelves of your

stores would be a genuine public

service.

Whether or not these paragraphs are li-

belous, tortious or of a quality that

threatens or intimidates the letter's

recipients depends on an examination of

the totality of the circumstances sur-

rounding the letter and its effect and

by contemplation of the writer's intent

and the reaction of its recipients.

A-13

There is no credible evidence

that the defendant acted out of spite or

with ill-will toward any of the plain-

tiffs. He did not know the plaintiffs;

he was unfamiliar with the game prior to

encountering it at a social cocktail par-

ty in late October 1980, in Washington,

D.C.; he had no knowledge concerning the

marketing of games in general or of "Pub-

lic Assistance" in specific.

The Court finds that Mr.

Brezenoff was motivated in good faith by

his concern for and support of the con-

cept of public assistance and his de-

sire to rebut undeserved barbs and fac-

tual representations made by the game

that he considered to be erroneous, de-

rogatory, unfair and counterproductive.

The Brezenoff letter was well within the

scope of his station as the top admini-

strator of public assistance in New York

A-14

City to comment on controversies sur-

rounding public assistance recipients or

administrators. The game was released at

a time when there was nationwide contro-

versy and partisan hostility to welfare

benefits in general and when important

State legislation was pending. The de-

fendant had frequently engaged in the

public debate concerning public welfare

in the media and by lecturing on the sub-

ject. He had the responsibility to ex-

press Agency policy on social service is-

sues and the integrity of its administra-

tion and to inform the public concerning

the programs of his Agency.

The Court sees nothing sinister

in the defendant's chosen avenue for com-

4/

ment on the game.— Plaintiffs complain

4/ Nor does the subsequent mailing of a

copy of the letter to Edward T. Weaver,

executive director of the American Public

Welfare Association demonstrate any im-

propriety. The suggestion of a conspir-

acy between Brezenoff and Weaver strains

credulity and is not credited.

A-15

that defendant's actions constitute "co-

vert reportage" and therefore demonstrate

ill-will. The Court is convinced that

Mr. Brezenoff in good faith felt that a

letter to game retailers was an appropri-

ate forum in which to respond to the ac-

cusations and "spoofs" promulgated by the

game. He was unaware that there had been

substantial media coverage of the game

and he felt that a letter to newspapers

would be insufficient and would probably

remain unpublished as a debate over the

promotion of a commercial vehicle.

The plaintiffs submitted the tes-

timony of an unemployed, self-styled in-

vestigative reporter for a political

news sheet, one Cathy Groudine, to indi-

cate that there was something surrepti-

tious about the letter. She claimed that

when she learned of the letter she tried

to obtain a copy and had difficulty in

A-16

obtaining one. From this, she concluded

that the defendant tried to cover up the

existence of the letter. However, the

credible evidence on this side foray

supports a contrary conclusion. Ms.

Groudine's testimony only demonstrated

her inability to personally speak to the

defendant. On January 31, 1981, the de-

fendant's staff promptly complied with a

request received pursuant to New York

City's Freedom of Information procedures

and sent a copy of the letter to Ms.

Groudine.

The letter did not express any

factual information which was knowingly

false or stated with a reckless disre-

gard for its veracity. The defendant's

conduct was neither negligent, reckless,

nor grossly irresponsible. The credible

evidence proves that the letter consti-

tutes a combination of legitimately held

A-17

opinion and unassailed facts. The bulk

of the letter contains factual state-

ments concerning the size of welfare

benefits, the demographic make-up of the

welfare rolls and an evaluation of ad-

ministrative efforts to reduce welfare

abuses. Plaintiffs offered no credible

evidence to dispute these representations

and they were not intended as defamatory

nor are they libelous.

The defendant stated it as his

opinion that the perpetuation of myths

that are inconsistent with the facts as

he viewed them does a grave injustice to

taxpayers and welfare recipients, that

the game is insensitive and shoddy as

well as a discredit to its manufacturers

and marketers. The defendant offered his

opinion that it would be a genuine public

service for merchants not to sell such

merchandise. Such an opinion could be

and was honestly and reasonably held and

A-18

could be freely spoken by a person in

Mr. Brezenoff's position without recrim-

ination.

Given the totality of the cir-

cumstances surrounding the letter, the

defendant's expertise as to factual mat-

ters concerning welfare and the specifi-

city of the factual presentation in the

rest of the letter, the last two para-

graphs must be read as the type of "rhe-

torical hyperbole" that characterizes

opinion. Moreover, it is obvious that

the basis for defendant's opinion in the

last paragraphs is the set of facts de-

scribed in the remainder of the letter.

Mr. Brezenoff was justified in

making an opinionated response to the

game. As Administrator of Human Re-

sources, he spoke for two constituen-

cies that were directly assaulted by the

game and its implications. Mr. Johnson

admits that it was the plaintiffs' goal

A-19

to "make people mad" in order to sell

games. The defendant's retort to the

provocation in plaintiffs' attack was a

reasonable reaction and not excessive.

At times plaintiffs testified that part

of their complaint with the defendant

was that his retort was not as vocal nor

as vociferous as those of Patricia

Harris, et al. The Court finds that it

was reasonable for the defendant to

comment on the game, that his comment

was reasonably restrained and that he

chose an entirely proper means to voice

his reactions to the game.

Finally, the defendant's lack of

a motive to injure plaintiffs rather

than to address the game itself, is il-

lustrated by his complete failure to en-

gage in any follow up on the letter. The

plaintiffs voice the notion that the

letter carried an implication to the re-

tailers of a threat of governmental

A-20

harassment to them. Mr. Brezenoff did

nothing to apprise others in any depart-

ment of the City of his response or to

invite any sort of governmental coercion

to inhibit sales. He wrote no other

letters and took no other action. Only

two of the thirteen recipients even ac-

knowledged receipt of the letter. In

each of those cases the recipient

applauded Mr. Brezenoff's viewpoint.

The defendant's testimony that his sole

purpose was to respond, not to censor,

is accepted as entirely credible. Once

he said what he had to say he took no

further action to inhibit plaintiffs'

sales.

III. Impact of the Letter

Perhaps the most damaging to the

plaintiffs' case is their failure to pre-

sent credible evidence that any potential

distributors of the game refrained from

marketing it because of the Brezenoff

A-21

letter. Plaintiffs attempted to make

that suggestion through Mr. Michael

Botti, a buyer for Brentano, who testi-

fied that he felt an implied threat from

the letter and that this feeling influ-

enced Brentano's decision in 1980 not to

sell the game. Mr. Botti was unable to

point to any specific language in the

letter or subsequent actions of the de-

fendant which he felt were threatening

or intimidating. Mr. Botti's testimony

was not worthy of belief; he was con-

tronted with and directly contradicted

by a letter from his own superior, Ms.

Monica Hollander to Mr. Brezenoff dated

November 13, 1980, stating on behalf of

Brentano that Mr. Botti had refused to

consider the game for purchase at that

time due to its insensitive and dis-

tasteful content. Peculiarly enough,

Mr. Botti did not actually see or examine

A-22

or evaluate a copy of the game until

nearly a year after the letter went out,

i.e., not until September 1981, and made

no effort to obtain a copy of the game

in the interim to see for himself. Par-

enthetically, as a matter of fact,

Brentano in the following year, in 1981,

changed its viewpoint and did carry the

game.

No other recipient of the letter

testified that he felt intimidated or

threatened. Correspondence from recip-

ients indicates that the game was either

rejected before receipt of the Brezenoff

letter or that the retailers felt that

any decision concerning what was proper

for them to sell was theirs alone to

make.

Apparently, the defendant chose

the wrong audience for his letters.

Plaintiffs' expert, Mr. Dunnigan,

A-23

testified that only two of the stores,

Brentano and F.A.O. Schwartz carry games

that are comparable>’ to "Public Assis-

tance". Both of those stores stated that

they had decided to reject the game be-

fore receiving the letter; moreover, both

stores ultimately decided to carry the

game in 1981.

The fact that the letter was on

official Human Resources stationery does

not appear to have intimidated any re-

cipients, nor should it have. All of

the letter's recipients are major re-

tailers and except for speculation ut-

tered by plaintiffs, there is no evi-

dence that such retailers feel threat-

ened easily. Human Resources had no

function or authority to regulate any

aspect of the business of retail stores.

5/ A comparable game would be an adult

game addressing a political or social

issue.

A-24

The defendant made no attempt to commun-

icate with or enlist any City agency

which did have authority to oversee or

regulate the recipients of the letter.

While there was testimony that the New

York City Fire Department chose to make

safety code inspections in December 1980

around Christmas shopping times, there

is no evidence that connected those in-

spections in any way whatsoever as an

ulterior threat or related them to the

game in question. They were not improp-

er. The City's inspections were not in

response to or in support of the

Brezenoff letter. Neither the licensing

power nor the health and safety in-

spection power of the City of New York

were shown to be associated with or

supportive of the Brezenoff letter in any

way.

Finally, it would be at best

speculative to conclude that any store

a-2$

in New York or elsewhere that did not

Carry the game, and was somehow connect-

ed with one of the letter's recipients,

refused to carry the game because of the

letter. The Court is convinced that if

there were decisions of retailers made

6/

not to carry the game,— those decisions

were made either in response to the on-

going notoriety and general public con-

troversy surrounding the game or due to

the store's own standards of propriety

and good taste. There is no evidence

impliedly or specifically linking any

decision to reject the game to the

Brezenoff letter.

67 There is some indication that Macy's

ordered the game and subsequently can-

celled its order and returned the mer-

chandise. It appears that the game never

actually reached the sales floor and the

reasons for the returns were not adduced

from or on behalf of Macy's, whether it

was received too late for the holiday

sales, or because of the controversy over

the game, or for whatever other reason.

A-26

IV. Libel

Plaintiffs' demand for compensa-

tion from defendant Brezenoff for libel

is utterly devoid of merit and borders

on frivolity. The prima facie require-

ments of proof of libel were not met.

The letter is not libelous per se, it

does not tend to injure the plaintiffs in

their business nor does it impute to them

a quality which would be detrimental to

their trade. See Bordoni v. New York

Times Co., Inc., 400 F. Supp. 1223, 1227

(S.D.N.Y. 1975). The letter as a whole,

given its plain and ordinary meaning,

does not libel the plaintiffs whatsoever.

Id. Moreover, there was no proof of fal-

sity, the absence of which is a complete

bar to recovery. Rinaldi v. Holt,

Rinehart & Winston, Inc., 42 N.Y. 2d 369,

381, 366 N.E. 2d 1299, 1306, 397 N.Y.S.2d

943, 950, cert. denied, 434 U.S.969 (1977).

A-27

Plaintiffs would not be entitled

to recover on the basis of a letter of

this character in any event because the

defendant was fully entitled to state

his honestly held opinion. See Gertz v.

Robert Welch, Inc., 418 U.S. 323, 329

(1974); Yiamouyiannis v. Consumers Union

of the United States, Inc., 619 F.2d 932,

941 (2d Cir.), cert. denied, 449 U.S. 839

(1980). Opinions are protected even

when they contain emotionally charged or

inflammatory rhetoric. Cf. NAACP v.

Claiborne Hardware Co., 50 U.S.L.W. 5122,

5133 (July 2, 1982) (constitutional pro-

tection applies to emotionally charged

speech). Since the letter sets forth

the facts that are the basis of the

opinion, it is fully protected and not

libelous. Rinaldi v. Holt, Rinehart &

Winston, Inc., 42 N.Y.2d at 382, 366

N.E.2d at 1306, 397 N.Y¥.S.2d at 950.

The plaintiffs' scurrilous and

A-28

scathing attack on the welfare system and

the beneficiaries thereof entitled, if

not required, a response from a public

official under the common law right of

retort. Cf. Duffy v. Kipers, 26 A.D.2d

127, 271 N.Y.S.2d 338 (4th Dept. 1966)

(a criticized public official may re-

spond with or initiate defamatory state-

ments in the course of his official du-

ties). Similarly, fair comment on the

attack is fully privileged. See Julian

v. American Business Consultants,

2N.o¥2d 1, 7, 137 N.E.24 1, 6, 155

N.Y.S.2d 1, 7 (1956).

In contrast to plaintiffs' un-

abashed criticism of the welfare system

and its beneficiaries, the letter's re-

sponse was restrained and fair in every

sense.

The right to respond to the

game's allegations is not diluted by the

A-29

defendant's status as a government offi-

cial. Public servants are entitled to

express their legitimately held opinions

and have every right to speak out in the

face of criticism they deem to be un-

founded. See First National Bank v.

Bellotti, 435 U.S. 765, 777 (1978);

Grower v. State, 23 A.D.2d 506, 255

N.Y.S.2d 135 (3d Dept. 1965), aff'd

19 N.Y. 2d 625, 224 N.E.2d 899, 278

N.¥.S.2d 408 (1967).

Indeed, the defendant's admini-

strative status renders him immune from

liability for damages resulting from a

Claim of defamation. See Barr v. Matteo,

350 U.S. 564 (1959); Expeditions

Unlimited Aquatic Enterprises, Inc. v.

Smithsonian Inst., 566 F.2d 289 (D.C.

Cir. 1977), cert. denied, 438 U.S. 915

(1978). Absolute immunity attaches when

the government official acts, as here,

within the scope of his official subject

A-30

matter. The immunity is applicable to

actions for claimed damage due to libel

and is absolute for a municipal officer

since libel is not a constitutional tort.

See Barr v. Matteo, 350 U.S. 564 (1959);

C. M. Clark Ins. Agency, Inc. v. Maxwell,

479 F.2d 1223, 1227 (D.C. Cir. 1973).

af In addition to absolute immunity

as a public official, defendant also is

protected by a qualified common law pri-

vilege to communicate with individuals

who have an interest in the subject mat-

ter. See Clark v. McGee, 49 N.Y.2d 613,

621, 404 N.E.2d 1283, 1287, 427 N.Y.S.2d

740, 745 (1980). Communications with

potential distributors of a controversial

game are protected by this privilege. Cf.

Shapiro v. Health Ins. Plan, 7 N.Y.2d 56,

60, 163 N.E.2d 333, 335-36, 194 N.Y.S.2d

509, 512 (1959) (privilege exists even if

there is no legal duty to communicate).

A-31

Damage to commercial interests does not

defeat the privilege. Zito v, American

Federation of Musicians, 60 A.D.2d 967,

401 N.Y.S.2d 929 (4th Dept. 1978). More-

over, common law privilege is not contin-

gent on broad publication of speaker's

views. See, e.g., Commonwealth Motor

Parts v. Bank of Nova Scotia, 44 A.D. 2d

375, 355 N.Y.S.2d 138, (lst Dept. 1974),

aff'd 37 N.Y.2d 824, 339 N.E. 2d 888, 377

N.Y.S.2d 482 (1975).

The common law qualified privi-

lege to communicate can only be overcome

by a showing of common law "actual mal-

ice". Unlike constitutional "actual

malice", infra., plaintiffs need only

show ll-will or culpable recklessness or

negligence. See Perfect Fit Indus. v.

ACME Quilting Co., 494 F. Supp. 505, 507

(S.D.N.Y. 1980). The defendant's actions

show no ill-will nor were they reckless

or negligent; his qualified common law

A=-32

privilege protects him against a claim

of libel.

Recovery by plaintiffs is fur-

ther barred by their failure to prove

"actual malice" as required by New York

Times v. Sullivan, 376 U.S. 254 (1964).

Proof of actual malice -- that the de-

fendant knew his statements were false

or that he spoke in reckless disregard

of the truth -- is constitutionally re-

quired when the libelled plaintiff is a

public official or a public figure.

Gertz v. Robert Welch Inc., 418 U.S. 323

(1974).

By injecting themselves into the

welfare controversy for profit and to

influence the resolution of the issue,

the plaintiffs became public figures with

respect to criticism of their welfare

views. Id. Gertz does not require that

plaintiffs' sole or dominant purpose be

to influence the controversy. When they

A-33

injected their criticisms of the welfare

system into the public forum by market-

ing and publicly promoting and exploit-

ing their game, they created a constitu-

tionally based protection for those who

sought to rebut those criticisms. Plain-

tiffs had and employed substantial media

access during this period to shape the

public debate and were therefore proto-

typical limited purpose public figures.

Plaintiffs attempt to escape the

New York Times requirement by defining

the controversy as one relating to cen-

sorship. Such a limitation would emascu-

late the constitutional protection that

has heretofore been required. In effect,

plaintiffs' position is that whenever a

party enters a medium to express an idea,

no matter how scurrilous, distasteful or

bogus, an individual who attacks that

idea by criticizing its publication has

A-34

created a brand new controversy -- a

censorship controversy.

Cases relied on by plaintiffs

are inapposite. Mr. Brezenoff did not

lift the plaintiffs out of obscurity and

thrust them into the public forum. Thus

the case is distinguished from Hutchinson

v. Proxmire, 443 U.S. 111, 135 (1979)

(Senator Proxmire's award of "Golden

Fleece" to a relatively unknown scientist). .

Nor was the defendant resurrecting an

ancient controversy against plaintiffs'

desires. See Wolston v. Readers Digest,

443 U.S. 157, 167-68 (1979). Finally,

plaintiffs were not dragged unwillingly

into a "cause celebre," see Time, Inc. v.

Firestone, 424 U.S. 448, 454 (1976)

(prominent woman's divorce proceedings

incorrectly characterized), rather they

hoped for, profited from, and encouraged

controversy.

The New York Times actual malice

A-35

standard has not been expressly limited

to cases involving media defendants.

Hutchinson, 443 U.S. at 133 n.16 ("This

Court has never decided the question").

Moreover, the New York Times standard

has been employed on behalf of non-media

defendants even though the issue was not

explicitly decided. See, e.g., St. Amant

v. Thompson, 390 U.S. 727 (1968) (candi-

date for public office); Garrision v.

Louisiana, 379 U.S. 64 (1964) (district

attorney).

Finally, the defendant is enti-

tled to constitutional protection even

though he expressed his views in the form

of a letter. There is no requirement

that a defendant seek broad public circu-

lation of his views in order to be pro-

tected by New York Times v. Sullivan. See

Adey v. United Action for Animals, Inc.,

361 F. Supp. 457, 461-62 (S.D.N.Y. 1973),

aff'd, 493 F.2d 1397 (2d Cir. 1974) cert .

A-36

denied, 419 U.S. 842 (1974). See also

Givhan v. Western Line Consolidated

School Dist., 439, U.S. 410, 413 (1979).

Thus, in order to recover for libel,

plaintiffs must demonstrate actual mal-

ice on the part of the defendant. This

has not been proven; therefore no re-

covery for libel can be had.2/

7/ As it must, New York law incorpor-

ates the constitutional protections for

free speech. In libel cases New York ex-

pands the protection established in New

York Times to cases involving private

individuals where the matter under dis-

cussion is of public concern. See

Chapadeau v. Utica Cbperver iepeten.

Inc., N.Y. ’ - ’ N.E.2d

61, 63-64 (1975). In a case involving

issues of public concern, a plaintiff

must show that the defendant acted in a

grossly irresponsible manner. Id. MThus,

even if plaintiffs were not public fig-

ures for the purposes of the welfare con-

troversy they could not recover under

New York law. Plaintiffs suggest that

Chapadeau should be limited to media

defendants; for the reasons discussed

above, the Court declines to do so.

A-37

V. Interference with Contractual and

Commercial Relations

Plaintiffs have failed to estab-

lish prima facie proof that the defend-

ant interfered with their contractual

relationships or with their advantageous

business relations. The elements needed

to prove a claim of tortious interfer-

ence with an alleged contract include

proof of the existence of a valid con-

tract, defendant's knowledge of that con-

tract, defendant's intentional procuring

of the breach of the contract and damages.

Wegman v. Dairylea Cooperative, Inc.,

50 A.D.2d 108, 376 N.Y.S.2d 728 (4th

Dept. 1975). The elements needed to

prove a claim of interference with an

advantageous business relationship in-

clude proof that the defendant acted

solely out of malice with the intention

of harming plaintiff's business. See

Shapiro v. Prudential Insurance Co.,

A-38

81 A.D.2d 661, 438 N.Y.S.2d 363 (2d Dept.

1981); Rosenberg v. Del-Mar Division,

Champion Int'l Corp., 56 A.D.2d 576, 391

N.Y.S.2d 452 (2d Dept. 1977).

None of those elements have been

proven. There is no proof that valid

contracts existed between the plaintiffs

and retailers. Apparently retailers

could ask for as many games as they de-

sired and could return games if they

chose not to sell them. There was no ev-

idence that the defendant had an idea

which stores had been approached by the

game's marketers in the year in question.

The Brezenoff letter did not call for re-

tailers to breach otherwise valid con-

tracts and there was no proof that any

retailer breached a valid contract and

damaged plaintiffs as a result of the

letter.

The defendant, as already stated

above, did not act out of malice or with

A-39

the sole intention of harming the plain-

tiffs. He acted in his own legitimate

self interest and for the interests of

welfare recipients and administrators.

Those legitimate goals leave his actions

within the scope of the common law priv-

ilege to interfere with contracts or

businesses when acting in one's own

legitimate self interest. See, e.g.,

Felsen v. Sol Cafe Mfg. Corp., 24 N.Y.2d

682, 249 N.E.2d 459, 301 N.Y.S.2d 610

(1969).

Plaintiffs are not entitled to

prevail herein for yet another reason;

the defendant is immune from a claim of

interference with contracts or business-

es because he was acting within the scope

of the subject matter of his official du-

ties. For the reasons expressed above

with respect to the claim of libel, a

valid claim does not exist here, as well.

A-40

See Expeditions Unlimited Aquatic

Enterprises, Inc., v. Smithsonian Inst.,

566 F.2d 289 *D.C. Cir. 1977), cert.

denied, 438 U.S. 915 (1978) (absolute

immunity attaches even where defendant

sends a letter that is critical of a

business).

Finally, Mr. Brezenoff's consti-

tutional protections of free speech en-

title him to engage in public debate even

if business interests are affected. See

NAACP v. Claiborne Hardware Co., 50

U.S.L.W. 5122 (July 2, 1982);

Organization for a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971).

VI. Interference with Free Speech and

Press -- Censorship

Plaintiffs assert yet another

claim, viz., that Brezenoff's criticism

of their game constitutes governmental

censorship. This contention demonstrates

A-41

a complete misunderstanding of the pro-

tections afforded to all speakers --

private and public -- by the Constitution.

A public official does not lose his un-

fettered right to express his opinion in

non-defamatory words concerning the cri-

tical comments of zealots and others ex-

ercising like privileges by deed and word.

The contra would put a silencer on the

elected and selected leaders of the body

politic. The Brezenoff letter was not

censorship; it was an appeal to con-

science and decency. The parties stipu-

lated in their joint statement of facts

that "Commissioner Brezenoff had the

responsibility to express agency policy

on social service issues and generally

to inform the public concerning the pro-

grams of his agency".

Plaintiffs rely on Bantam Books

v. Sullivan, 372 U.S. 58 (1962) which

A-42

interdicts informal governmental efforts

to censor. Bantam Books is distin-

guished in a number of respects. There,

the offending letter was written by the

Commission to Encourage Morality in Youth,

a body whose purpose was to inform vendors

what material it was improper to sell.

The letter suggested that prosecuting

agencies would check-up and follow-up.

In contrast, there was no threatened or

actual follow-up to the Brezenoff letter;

the lack thereof defeats a claim of cen-

sorship.

Additional cases cited by plain-

tiffs are equally inapplicable. In

Bonner-Lyons v. School Committee, 480 F.2d

442 (lst Cir. 1973), the defendant was

engaged in disseminating literature to a

captive school audience where those with

opposing views had no opportunity to

reach the same audience. The plaintiffs

could, and in fact did, write letters to

A-43

the recipients of the Brezenoff letter.

Significantly, if the letter had any

impact, it was to increase the opportun-

ities of the plaintiffs to express their

views in the media. In State Cinema v.

Ryan, 422 F.2d 1400 (lst Cir.), cert.

denied, 400 U.S. 850 (1970), the infor-

mal warning by the police and prosecutor

threatened subsequent arrest and prose-

cution and is therefore irrelevant to

the actions of the defendant, Mr.

Brezenoff.

Plaintiffs also rely on Selfridge

v. Carey, 522 F. Supp. 693, 697 (N.D.

N.Y.), aff'd 660 F.2d 516 (2d Cir. 1981)

to suggest that the defendant had an

affirmative duty to protect the plain-

tiffs' right to sell the game. In

Selfridge, the Court held that the state

could not cancel a rugby match involving

South African players because it feared

A-44

that violence would result. Unlike the

visiting South Africans, the plaintiffs

had numerous outlets for their games and

their views and were in no way impeded

from hawking either.

Even if the defendant had been

engaged in censorship, he would have been

protected by a qualified privilege with

respect to a claim for damages resulting

from his actions in his official area

as long as he acted in good faith. See,

e.g., Wood v. Strickland, 420 U.S. 308,

321 (1975).

VII. Conclusion

None of the theories of claim put

forth by plaintiffs were supported by a

fair preponderance of credible proofs or

have legal merit.

Accordingly, the complaint and

all the claims of the plaintiffs in this

action are hereby dismissed on the merits,

with costs.

A-45

The foregoing shall constitute

the findings of fact and conclusions of

law required by Rule 52(a) of the Federal

Rules of Civil Procedure.

SO ORDERED.

December 6, 1982 Milton Pollack

U.S. District Judge

A-46

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

7

No. 1111—August Term, 1982

(Argued April 7, 1983 Decided April 28, 1983)

Docket No. 83-7014

>

HAMMERHEAD ENTERPRISES, INC.,

RONALD PRAMSCHUFER, and ROBERT JOHNSON,

Plaintiffs-A ppellants,

—against—

STANLEY BREZENOFF, MAYorR and CITY COUNCIL,

and THE CITY OF NEw YorK,

Defendants-Appellees.

Before:

KAUFMAN and NEWMAN, Circuit Judges,

and LASKER, District Judge.*

+

° Of the United States District Court for the Southern District of New

York, sitting by designation.

A-47

Appeal from a judgment entered, after a bench trial,

on an order of the United States District Court for the

Southern District of New York, Milton Pollack, Judge,

dismissing appellants’ complaint which alleged a violation

of First Amendment rights. Appellants also challenge the

rejection of their claims based on libel, defamation, and

tortious interference with contractual relations.

Affirmed.

+

DAVID TICHANE, New York, N.Y., (Luther C.

West, West, Carey, Frame & Barnstein,

Baltimore, Md., of Counsel), for Plain-

tiffs-Appellants.

ARNOLD STREAM, New York, N.Y. (Frederick

A. O. Schwarz, Jr., Corporation Coun-

sel, Francis F. Caputo, George Gutwirth,

New York, N.Y., of Counsel), for Defen-

dants-Appellees.

+>

KAUFMAN, Circuit Judge:

Social and political satire have long held a prominent

place in the American literary landscape. From the witti-

cisms of Benjamin Franklin to the pungent rhetoric of

H.L. Mencken, our nation has been blessed with skilled

linguistic craftsmen whose barbs and aphorisms have

shaped the course of public debate. Nor have words

provided the only medium for biting criticism of estab-

lishment shibboleths. Filmmakers like Preston Sturges

A-48

have lambasted our most sacred institutions and modern

newspaper readers daily have taken delight in the tren-

chant cartoons of Garry Trudeau. Appellants, creators of

a board game titled “Public Assistance—Why Bother

Working for a Living” (“Public Assistance”), purport to

be heirs to this grand tradition.

Public Assistance, fashioned in the style of Monopoly

and similar adult parlor games, lampoons what appellants

might label the “welfare bureaucracy.” In their view, the

game, which we shall later describe in detail, serves to

inform the public of the wasteful and fraudulent nature

of our system of distributing funds to deprived and

disabled individuals. Others proffer a different outlook.

Patricia Harris, former Secretary of the U.S. Dept. of

Health and Human Services, for example, characterized

the game as “vicious” and based on “false stereotypes

that are callous, sexist, and racist.” Similarly, appellec

Stanley Brezenoff, Administrator of the Human Re-

sources Administration of the City of New York,

portrayed appellants as having launched “an ugly and

damaging slam at this society’s poorest citizens.”

Our task, of course, is not to evaluate these competing

perspectives. For it is beyond peradventure that regardless

of our view of the wisdom and taste of appellants’

creation, their right to market the game is protected by

the First Amendment. This Court has repeatedly made

clear that suppression of even the most unpopular or

hateful ideas can have no place in a democratic society

which depends upon an informed citizenry to exercise the

precious right of self-government. See Federal Election

Commission v. Hall-Tyner Election Campaign Commit-

tee, 678 F.2d 416 (2d Cir. 1982), cert. denied, 103 S. Ct.

785 (1983); Edwards v. National Audubon Society, Inc.,

556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977);

A-49

see also International Society for Krishna Consciousness

Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981), vacated and

remanded on rehearing, No. 80-7709 (2d Cir. Sept. 29,

1981) (unpublished order).

This case, however, does not involve attempts by gov-

ernment to censor the unorthodox or the insurgent.

Rather appellants ask us to protect them against a letter

sent by Brezenoff simply urging various department

stores not to carry the controversial product. Apparently,

appellants believe the First Amendment shields their own

critique from any form of official criticism. In our view,

this approach would stand the Constitution on its head.

The right to free speech guarantees that every citizen may,

without fear of recrimination, openly and proudly object

to established government policy. It does not immunize

the challengers from reproach. Having boldly entered the

flames of public discussion the First Amendment specifi-

cally is designed to kindle, appellants now seek our rescue

from the sparks of controversy they ignited. In the

absence of any evidence that Brezenoff or any New York

City official attempted to do more than express his view

concerning the distasteful nature of appellants’ invention,

we decline to come to their assistance. Accordingly, for

the reasons stated below, we affirm the judgment of the

district court dismissing appellants’ complaint alleging

violation of their First Amendment rights and other

related injuries.

The public controversy surrounding appellants’ satiri-

cal creation provides a sterling example of the “robust

debate” which lies at the core of the First Amendment.

See New York Times Co. v. Sullivan, 376 U.S. 254, 270

A-50

(1964). Because a complete understanding of this na-

tionwide dispute and the game which provoked it are

necessary to a proper disposition of this appeal, we set

forth the underlying facts in some detail.

In the summer of 1980, Robert Johnson, an author and

publisher, and Ronald Pramschufer, a printer with pro-

duction and sales experience, concocted “Public Assist-

ance—Why Bother Working for a Living.” The game is

played by rolling dice and moving pawns twelve times

around the board, each trip representing a month of the

year. Players attempt to accumulate as much money as

possible as they proceed along two routes: the inside

track, labeled the “Able Bodied Welfare Recipient's

Promenade,” and the outer circuit, designated “the work-

ing person’s rut.” As a reflection of appellants’ view of

the nation’s welfare system, financial rewards come more

quickly and easily to contestants traveling the inner circle.

Indeed, Public Assistance seeks to present a striking

contrast between the easy life allegedly enjoyed by recipi-

ents of public funds and the numerous obstacles pur-

portedly confronting employed citizens. The game’s

working people are made to appear burdened by oppres-

sive taxes, strangled by government regulations, and vic-

timized by reverse discrimination. Conversely, those

receiving welfare benefits are portrayed as lazy, dishonest

and in some cases intoxicated and promiscuous individ-

uals who take unfair advantage of government largesse.

These players may procure additional monies by obtain-

ing the assistance of an “ethnic lawyer” and by landing

on squares marked “have an illegitimate child.” Govern-

ment officials who distribute funds are similarly depicted

as lazy, tolerant of fraud, and easily duped by dishonest

claimants. In sum, the game mocks the entire system of

A-51

public assistance this country has worked so hard to

perfect.

Having completed the game’s design, Pramschufer and

Johnson began devising a strategy to produce and market

the new product. Together they formed Hammerhead

Enterprises, Inc., a Maryland Corporation, which by the

fall of 1980 had secured financing and commenced manu-

facturing the first copies of Public Assistance. At the

same time, the young entrepreneurs took steps to ensure

that sales of the game which retailed for $15.95 would not

depend upon mere word of mouth. They quickly con-

tacted their local newspaper, the Annapolis Evening Capi-

tol, and succeeded in obtaining an article describing their

controversial creation and detailing the negative reactions

of a local community agency representative. In light of

the inflammatory nature of the game, it should come as

no surprise that this initial effort to garner publicity soon

resulted in the widespread media attention appellants so

evidently desired.

The column in the Maryland paper was observed by the

Associated Press which disseminated the story nationally

during September and October of 1980. Pramschufer and

Johnson, displaying no reluctance to highlight the game’s

outlandish nature, became regular guests on radio talk

shows, appearing at least a dozen times closely following

the AP report. In addition, Public Assistance was

featured by Phil Donahue on the Today Show which

invited Johnson to defend the game on network televi-

sion,

Negative reactions were intense and immediate as out-

raged spokesmen for impoverished citizens entered the

debate. Carl Snowden, a leader of a local anti-poverty

group in Annapolis, joined Johnson on the Today show

where Snowden denounced the game. The National Or-

A-52

ganization of Women, which condemned the game for

“perpetuat(ing}] myths and totally misrepresent[ing] the

role of women on welfare,” urged its members to take

action against this form of amusement. The Maryland

NAACP also called for a boycott of merchants carrying

Public Assistance. As a result of these protests, certain

stores in the Baltimore-Washington area allegedly can-

celled orders for the new game which appellants had

begun shipping in late October and early November 1980,

Stanley Brezenoff, the Administrator of the Human

Resources Administration of New York City (“HRA”)

also reacted unfavorably to Public Assistance when he

first encountered the game at a Washington, D.C. social

gathering in late October 1980. After examining the

game, Brezenoff became deeply concerned over the dis-

torted impression of the welfare system which, in his

view, would be conveyed to the public by appellants’

attempt at satire. As the New York City official primarily

responsible for administering the HRA’s annual $3 billion

budget, Brezenoff had previously spoken on numerous

occasions concerning the provision of financial assistance

to the needy. He now viewed it as his duty to express his

disagreement with appellants’ disparaging characteriza-

tions of welfare recipients and chose to voice his opinion

in a letter written on official stationery and mailed on

November 5, 1980 to 13 New York department stores.'

Brezenoff discussed his decision with no city officials

other than his assistant, Ann Whalen, who aided in

drafting the challenged communication, and an HRA

staff attorney.

\ The letter was sent to Abraham & Strauss; Alexander's; B. Altman

& Co.; Bloomingdale's; Gimbels; Hammacher-Schlemmer; Lord &

Taylor; Macy's; Saks Fifth Avenue; F.A.O, Schwarz; Brentano's;

Barnes & Noble; and Toys-R-Us.

A-53

Brezenoff’s letter, set forth in the margin,’ urges the

stores to refrain from carrying Public Assistance. It lauds

recent improvements in the administration and manage-

ment of the welfare system, and elucidates the harsh

reality that a NYC family of four receiving public assist-

ance is forced to survive on a meager $374 per month

2 Brezenoff sent the following letter to the thirteen department stores

and mailed a copy to Edward T. Weaver, executive director of the

American Public Welfare Association, a private group attempting to

thwart sales of the game:

Dear Mr.

As you may know, there is a new board game on the national

retail market called “Public Assistance.” | am writing to urge that

refrain from carrying this game in its stores.

“Public Assistance” is not, as its inventors claim, a harmless

spoof of welfare cheats and liberal government bureaucrats. It is an

ugly and damaging slam at this society’s poorest citizens, 60 percent

of whom are children.

A welfare family of four in New York City receives public

assistance and food stamp benefits of $374 a month to cover

everything—food, clothing, utilities, carfare, and the other necessi-

ties—except rent and medical care. That works out to about $3.01

per person per day. The maximum the family can receive for rent is

$218 monthly.

Besides lampooning the painful financial situation of thos who

struggle to get by on that amount in this economy, the game also

denigrates the very real progress over the past decade in reforming

administration and management of the welfare system. Locally,

error rates in payment and eligibility are now a fraction of what

they were just seven years ago; caseloads are down to their lowest

levels since 1972; and more able-bodied welfare recipients are being

removed from the rolls and put to work in productive jobs than at

any other time in the City’s history.

The system is still imperfect, but we are workiag hard to improve

it, and the “welfare mess” of the old days is gone.

By perpetuating outdated myths, I believe the “Public Assist-

ance” game does a grave injustice to taxpayers and welfare clients

alike; by its insensitivity and plain shoddiness, it is a discredit to

those associated with its manufacture and marketing.

Your cooperation in keeping this game off the shelves of your

stores would be a genuine public service.

With thanks and best wishes.

Sincerely,

A-54

(excluding rent and medical care). Brezenoff also ex-

presses his opinion that appellants’ creation “does a grave

injustice to taxpayers and welfare clients alike.” The letter

closes with the exhortation, “Your cooperation in keeping

this game off the shelves of your stores would be a

genuine public service.”

Brezenoff received two initial responses.’ Monica Hol-

lander of Brentano’s wrote to express her store’s “com-

plete agreement” with Brezenoff’s point of view, and to

inform him that the store’s buyer, Michael Botti, had

decided before receiving Brezenoff’s letter not to order

Public Assistance. Peter Oechsle, President of F.A.O.

Schwarz also sent a letter explaining that his store had

rejected the game “several months ago.”* Brezenoff took

no further steps to trace the consequences of his corre-

spondence. He did not investigate whether any merchants

were in fact carrying the game nor did he contact any

government agency which might have regulatory author-

ity over New York department stores.© The HRA has no

such administrative power.

3 Subsequently, in March 1982, Brezenoff received a copy of a letter

sent by Leonard Riggio, President of Barnes & Noble, to appellants’

attorney, David Tichane. This correspondence revealed Riggio had

read Brezenoff’s November 5, 1980 letter and thrown it away.

4 Appellants correctly point out that their game had been on the

market only a few weeks in November 1980 when F.A.O. Schwarz

received the Brezenoff letter. Oechsle’s exaggerated estimate of

“several months,” however, does not undermine the basic import of his

letter that his store’s decision not to carry Public Assistance was not

influenced by the challenged communication.

5 Appellants’ only allegation that Brezenoff invoked coercive govern-

ment power is based on the unusual vigilance of New York fire

inspectors during the 1980 Christmas season. No evidence, however,

suggests Brezenoff ever communicated with fire department officials

or that the inspectors singled out stores carrying the game.

A-55

Moreover, no credible evidence suggests that any store

decided not to carry the game as a result of Brezenoff’s

letter. Michael Botti did initially testify that he had been

influenced by Brezenoff’s “strong request” when he de-

cided not to order the controversial product. On cross-

examination, however, he admitted that the November

13, 1980 letter sent by his superior, Monica Hollander,

accurately informed Brezenoff that Brentano’s had cho-

sen not to sell Public Assistance before receiving Bre-

zenoff’s communication. In addition, Botti was unable to

point to any language in the Brezenoff letter which he

found threatening or coercive. Appellants also note that

Macy’s cancelled orders for the game it had placed prior

to the 1980 Christmas season. The decision to cancel,

however, may have been spurred by the continuing con-

troversy in the press or by business reasons wholly unre-

lated to the Brezenoff letter. No Macy’s official testified

to explain the store’s actions nor did representatives from

any other merchant describe the choice each made not to

carry the game.

The growing public controversy surrounding Public

Assistance continued throughout the late fall of 1980. On

November 30, 1980, the New York Times published an

article describing the game and the negative responses it

had provoked. Kathy Groudine, a struggling freelance

writer, spotted the column and decided to write about the

game for a Libertarian newspaper. In addition, the New

York Daily News printed two stories concerning the game,

the latter not only discussing the product but also men-

tioning the Brezenoff letter. In spite of all this publicity,

or perhaps because of it, Hammerhead Enterprises sold

10,000 Public Assistance games during the 1980 Christ-

mas season.

A-56

The Daily News article of December 15, 1980 informed

Ms. Groudine and appellants of Brezenoff’s efforts to

dissuade stores from carrying the product. Ms. Groudine

then attempted to obtain a copy of Brezenoff’s letter by

telephoning his office. She identified herself as an investi-

gative journalist but was not permitted to speak with

Brezenoff. After telephoning a freedom of information

officer of the City of New York, Groudine received

through the mails a copy of the correspondence she

desired in February of 1981. On February 27, 1981,

Pramschufer appeared on the Barry Farber radio show

where he first had the chance to inspect Brezenoff’s letter.

On May 20, 1981, Pramschufer, Johnson and Ham-

merhead Enterprises initiated this action against Bre-

zenoff acting in his individual and official capacity,

against the Mayor and the City Council of New York, and

against the City itself. Appellants alleged the various

defendants had violated their First Amendment rights.

They also argued the Brezenoff letter was libelous,

defamatory, and tortiously interfered with contractual

relations. Jurisdiction was claimed pursuant to 28 U.S.C.

§ 1343 (jurisdictional counterpart of 42 U.S.C. § 1983)

and 28 U.S.C. § 1332 (diversity).

During the course of litigation, appellants received, in

September 1981, a list of the department stores to which

Brezenoff had mailed the challenged letter. Thereafter,

Hammerhead Enterprises was successful in persuading

both Brentano’s and F.A.O. Schwarz to carry the game

for the 1981 Christmas season. Fifty-five thousand Public

Assistance games were sold during 1981, primarily

through small retail outlets.

A bench trial was held before Judge Pollack between

September 28 and September 30, 1982. At the close of

trial, the district judge dismissed the complaint against all

A-57

defendants except Brezenoff since no evidence was pre-

sented that they had participated in his decision to send

the letter. On December 6, 1982, Judge Pollack also

rejected appellants’ claims against Brezenoff. Judge Pol-

lack found Brezenoff acted in good faith when he at-

tempted to persuade stores not to carry appellants’

controversial game. The court also determined that Bre-

zenoff’s letter was “an appeal to conscience and decency”

and in no way constituted illicit censorship. In addition,

Judge Pollack concluded the Brezenoff letter was neither

libelous nor defamatory since it was merely a statement of

accurate facts and an expression of Brezenoff’s personal

opinion. Accordingly, the district court dismissed the

complaint in its entirety. Pramschufer, Johnson, and

Hammerhead Enterprises appeal.

II

A. First Amendment Cicim

We have emphasized that “[courts] must remain pro-

foundly skeptical of government claims that state action

affecting expression can survive constitutional objec-

tions.” Thomas v. Board of Education, Granville Central

School District, 607 F.2d 1043, 1047 (2d Cir. 1979), cert.

denied, 444 U.S. 1081 (1980). Even the most penetrating

examination of Brezenoff’s actions, however, reveals no

violation of appellants’ First Amendment rights. Instead,

the record indicates that Brezenoff’s request to New York

department stores to refrain from carrying Public Assist-

ance was nothing more than a well-reasoned and sincere

entreaty in support of his own political perspective. And,

although we share Judge Pollack’s view that the letter was

“an appeal to conscience and decency,” Brezenoff’s pleas

A-58

would have been equally immune from appellants’ chal-

lenge had they been based on the views of a society which

this or any court found wholly repugnant. See Roth v.

United States, 354 U.S. 476, 484 (1957) (“unorthodox

ideas, controversial ideas, even ideas hateful to the pre-

vailing climate of opinion—have the full protection of

[constitutional] guarantees.”)

Appellants invoke the spectre of government censor-

ship. The record before us, however, shows this claim to

be little more than a figment of appellants’ collective

imagination. We agree that, under certain circumstances,

oral or written statements made by public officials will

require courts to draw fine lines between permissible

expressions of personal opinion and implied threats to

employ coercive state power to stifle protected speech.°

Where comments of a government official can reasonably

be interpreted as intimating that some form of punish-

ment or adverse regulatory action will follow the failure

to accede to the official’s request, a valid claim can be

stated. Similarly, claimants who can demonstrate that the

distribution of items containing protected speech has been

deterred by official pronouncements might raise cogniza-

ble First Amendment issues. See Bantam Books, Inc. v.

Sullivan, 372 U.S. 58 (1963).’ We have already noted,

however, appellants cannot establish that this case in-

volves either of these troubling situations.

6 Since appellants have failed to establish any constitutional violation,

we need not address the competing First Amendment considerations of

Brezenoff’s own right to speak.

7 Appellants’ inability to prove that Brezenoff’s letter could reasona-

bly be viewed as threatening or that any one was in fact intimidated by

his correspondence makes it unnecessary for us to determine whether

the former, the latter, or both showings are requisite elements of a First

Amendment violation.

A-59

Appellants’ efforts to fit this case under the rubric of

Bantam Books, Inc. v. Sullivan, supra, are entirely un-

successful. In that case, the Rhode Island Commission to

Encourage Morality in Youth, whose practices were inval-

idated by the Supreme Court, had explicit statutory

authority to recommend prosecution of distributors of

books and magazines who continued to display publica-

tions the Commission deemed objectionable for sale to

individuals under 18 years of age. In addition, the Court

accepted the state court’s finding that distributors had

ceased stocking protected communications after being

intimidated by the Commission’s official notices. By

contrast, Brezenoff’s letter refers to no adverse conse-

quences that might be suffered by stores selling Public

Assistance games, nor does the HRA have the power to

impose sanctions on merchants who did not respond to

Brezenoff’s requests.* Moreover, the evidence indicates

that not a single store was influenced by Brezenoff’s

correspondence. The challenged communication, there-

fore, was simply not part of an “informal system of

censorship.” Bantam Books, Inc. v. Sullivan, supra, 372

U.S. at 71.

Appellants’ contention that Brezenoff’s actions were

unconstitutionally shrouded in secrecy is similarly without

merit. The First Amendment does not require public

officials to communicate only through the media, and

8 Appellants suggest that Brezenoff somehow engaged in “follow-up

action” when he mailed a copy of the challenged letter to Edward

Weaver, executive director of the American Public Welfare Associa-

tion. The contention that merely writing to a private party constituted

a government conspiracy to censor the controversial game is as

spurious as it appears. Equally frivolous is appellants’ reliance on fire

inspections performed during the Christmas season of 1980. Appel-

lants have demonstrated no connection whatever between these inspec-

tions and Brezenoff’s activities. See note 5 supra.

A-60

Judge Pollack wisely found Brezenoff acted in good faith

when he wrote the department stores directly. Brezenoff

also promptly complied with Ms. Groudine’s freedom of

information request for a copy of the letter, and his

refusal to speak with her on the telephone is hardly

probative of an effort to hide his attempt to persuade

merchants not to carry Public Assistance. Accordingly,

we find Brezenoff did not violate appellants’ First

Amendment rights by sending the November 5, 1980

letter.”

B. Libel

Appellants’ libel claim is based upon a fundamental

misconception. They ask this Court to find defamatory

Brezenoff’s statement that the stores’ cooperation in

keeping Public Assistance off the shelves would be a

genuine public service. F’.’« appellants’ perspective, the

suppression of public views is contrary to the spirit of our

democracy and can therefore never be in the public

interest. Accordingly, they argue Brezenoff’s position is

false and, since it was intended to impugn the integrity of

those who designed the game, defamatory.

Whether or not we agree with Brezenoff’s opinion

concerning the societal value of the appearance of Public

Assistance in department stores, this Court’s role is not to

pass judgment on the validity of his point of view. It is

9 Appellants also raise vague allegations of impermissible “infringe-

ment” of their right to speak. As we set forth in the text, we find

nothing unconstitutionally odious in Brezenoff’s conduct. This case

does not involve an indirect restriction on appellants’ exercise of

political rights. Cf. Bates v. Little Rock, 361 U.S. 516, 523 (1960)

(invalidating local ordinance requiring disclosure of names of members

in local NAACP since this “would work a significant interference with

. . « freedom of association”). Rather, appellants are being “forced”

only to endure a conflict with Brezenoff’s own political views.

A-61

well settled that the Constitution does not permit the

imposition of liability for expressing so-called “false

ideas.” See Gertz v. Robert Welch, Inc., 418 U.S. 323,

339-340 (1974). Similarly, New York law protects the

expression of “even erroneous opinion” against libel

suits. Rinaldi v. Holt, Rinehart & Winston, Inc., 42

N.Y.2d 369, 383, cert. denied, 434 U.S. 969 (1977). These

salutary principles stem from the basic premise that a free

people must depend upon the competition of conflicting

ideas, and not the wisdom of judges, to arrive at the

ultimate truth. Ironically, appellants would undermine the

very principle they champion, by limiting Brezenoff’s

right to expound his belief that Public Assistance should

not be circulated. The First Amendment contains no such

limitation.

Moreover, nothing in Brezenoff’s entire statement may

be held libelous under prior rulings of this Court. The

majority of appellee’s letter sets forth facts concerning

the operation of New York’s welfare system and the

accuracy of these assertions is not challenged in this

litigation. The remainder of Brezenoff’s exhortation

merely reflects his view, based on these uncontested facts,

that appellants’ game is distasteful and damaging. This

expression of opinion, however controversial, cannot

form the basis for a libel judgment. See Edwards v.

National Audobon Society, Inc., supra, 556 F.2d at 121;

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert.

denied, 429 U.S. 1062 (1977); Hotchner v. Castillo-

Puche, 551 F.2d 910 (2d Cir.), cert. denied, 434 U.S. 834

(1977).'°

10 Since we conclude Brezenoff’s letter was not libelous, we need not

consider whether appellants would be required to comport with the

“actual malice” standard of New York Times v. Sullivan, 376 U.S. 254

(1964) or the “gross irresponsibility” standard set forth in Chapadeau

A-62

i.

Having carefully examined appellants’ additional

claims, we find them to be entirely without merit.''

Appellants ask this Court to award them damages for

injury they have not proved and to immunize them from

criticism they have shown no reluctance to inflict on

others. We decline to do so. Accordingly, the judgment of

the district court is affirmed.

v. Utica Observer Dispatch, Inc., 38 N.Y.2d 61 (1975). We also need

not determine whether Brezenoff’s remarks were protected by an

absolute or qualified privilege pursuant to the principles of Clark v.

McGee, 49 N.Y.2d 613 (1980).

" The district judge correctly determined appellants failed to show any

participation by other City officials in Brezenoff’s decision to send the

letter. Since we find Brezenoff committed no compensable injury, the

other defendants cannot be liable under the doctrine of respondeat

superior.

A-63