# Petition — Hammerhead Enterprises, Inc. v. Brezenoff

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 892

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0130%3A1. Public record. Not legal advice.