Amicus Curiae Brief — Simon Wiesenthal Center for Holocaust Studies v. McCalden

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No. 91-1643

—Supren® Svart, U.S.

In the Supreme Court 1" >

OF THE | MAT g B92

United States ie es we cuit

OCTOBER TERM, 1991

THE SIMON WIESENTHAL CENTER FOR HOLOCAUST

STUDIES, RABBI MARVIN HIER, THE AMERICAN

JEWISH COMMITTEE AND THE City OF LOS ANGELES,

Petitioner,

VS.

VIVIANA MCCALDEN, AS ADMINISTRATOR OF THE

ESTATE OF DAvID MCCALDEN,

Respondent.

BRIEF OF THE ANTI-DEFAMATION LEAGUE ON

BEHALF OF ITSELF AND THE NATIONAL

ASSOCIATION OF EVANGELICALS, THE CHRISTIAN

LEGAL SOCIETY, THE AMERICAN JEWISH

CONGRESS, THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL, AND THE JEWISH

COMMUNITY RELATIONS COMMITTEE, JEWISH

FEDERATION COUNCIL OF GREATER LOS ANGELES,

AMICI CURIAE, IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

ROBERT C. Post

1833 Berryman Street

Berkeley, California 94703

(510) 642-9523

Counsel of record:

ELLiot L. BIEN

Bien, Summers & Dale

220 Montgomery Street, Suite 1210

San Francisco, California 94104

(415) 291-0300

Of counsel:

RUTH L. LANSNER

STEVEN M. FREEMAN

Anti-Defamation League

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Bowne of San Francisco, Inc. «+ 190 Ninth St. + SF... CA 94103 + (415) 284-2200

TABLE OF CONTENTS

An Exceptionally Important Issue of Constitutional Law is

Raised by the Holding of the Court of Appeals for The

Ninth Circuit Reinstating Respondent’s Claim of Interfer-

ence With a Contractual Relationship ................

A. The Holding of The Ninth Circuit Has Significant

B.

ind

National Implications for the Exercise of First

Amendment Freedoms... ...... 2... ccc ccc ececes

The Decision of The Ninth Circuit Applies a Patently

Incorrect First Amendment Standard.............

Application of the Correct First Amendment Stan-

dard Requires That the Claim of Tortious Interfer-

ence with Contract be Dismissed Pursuant to Fed. R.

a We GENE NIE 6 bAc dene Gckccdueeesecesn

IT.

A Closely Related Issue of Constitutional Law is Raised by

the Holding Reinstating the Claim Under California Civil

eo BR err rer rrr re Pere or rere

ASE RE eA et PL OL ct Mt ex, Meer Re sg SY ON

Appendix

12

ii

TABLE OF AUTHORITIES

Cases

Page

Abrams & Fox, Inc. v. Briney, 39 Cal.App.3d 604 (1970). 7

Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151

(N.D.Cal. 1983), affd., 732 F.2d 163 (9th Cir.), cert.

aE, GP AE. ee is a ac us Fr eek ces kes 12

Brandenberg v. Ohio, 395 U.S. 444 (1969) ............. 9

DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const.

Trades Council, 485 U.S. 568 (1988) ................ 5

Church of Scientology Intern v. Eli Lilly & Co., 778 F.Supp.

GGL Cas Sa ink as sn ee Bac eek oe fe 12

Givhan v. Western Line Consol. School Dist., 439 U.S. 410

CRPOED 05-4ks cs00c00dee eee ee eee ees 15

H & M Assoc. v. City of El Centro, 109 Cal.App.3d 399

CUGRD «000.0 d0 wcieaslaan ei see aateiee eek eee, 7

Healy v. James, 408 U.S. 169 (1972) .................. 1]

Laskey v. American Broadcasting Co., Inc., 606 F.Supp. 934

CEA. 0 SORE 5:0h denkieee ls dace ys ee 12

NAACP v. Button, 371 US: 415 (1963) .. 2.0.2 ce lcs: 7

NAACP v. Claiborne Hardware Co., 458 U.S. 568

(errr rr rt aie yum 24,13

New York Times v. Sullivan, 376 U.S. 254 (1964)....... 4,10

Organization for a Better Austin v. Keefe, 402 U.S. 415

gg) eee rr oy Ga tne 9,10

Pacific Gas & Elec. Co. v. Bear, Stearns Co., 50 Cal.3d 1118 5

Smith v. California, 361 U.S. 147 (1959) ............... 12

Speiser v. Randall, 357 U.S. 513 (1958)................ 6

St. Amant v. Thompson, 390 U.S. 727 (1968) .......... 1]

Terminiello v. Chicago, 337 U.S. 1 (1949).............. 9

Thornhill v. Alabama, 310 U.S. 88 (1940) .............. 5

Tinker v. Des Moines School District, 393 U.S. 503 (1969) 10

West Virginia State Board of Education v. Barnette, 319

CUS. GG CIES os ovens cusaneueeedesas eke 6

iil

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS AND STATUTES

Page

Constitutional Provisions and Statutes

California Civil Code, Section 51.7 (Unruh Act) ..... 8, 14,15

U.S. Coastitution, First Amendment ................. passim

Other Authorities

Restatement of the Law of Torts (Second) Section 766

EE Ae Sen Oo ee See Saree eee ee 7

No. 91-1643

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

THE SIMON WIESENTHAL CENTER FOR HOLOCAUST

STUDIES, RABBI MARVIN HIER, THE AMERICAN

JEWISH COMMITTEE AND THE CITy OF LOS ANGELES,

Petitioner,

VS.

VIVIANA McCCALDEN, AS ADMINISTRATOR OF THE

ESTATE OF DaviD McCCALDEN,

Respondent.

BRIEF OF THE ANTI-DEFAMATION LEAGUE ON

BEHALF OF ITSELF AND THE NATIONAL

ASSOCIATION OF EVANGELICALS, THE CHRISTIAN

LEGAL SOCIETY, THE AMERICAN JEWISH

CONGRESS, THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL, AND THE JEWISH

COMMUNITY RELATIONS COMMITTEE, JEWISH

FEDERATION COUNCIL OF GREATER LOS ANGELES,

AMICI CURIAE, IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

This brief is submitted with the consent of the parties. Originals

of the letters reflecting such consent are being filed with the Clerk

of the Court simultaneously with the filing of this brief.

INTERESTS OF THE AMICI CURIAE

The amici, national civic and religous organizations, are

strongly committed to the First Amendment freedom of expres-

sion. But this is not merely as a matter of principle. The amici

depend on the freedom of expression to carry out their various and

sometimes controversial missions on a day to day basis. Although

2

they are not always on the same side of the substantive issues, the

amici join in urging a grant of certiorari in this important and

disturbing case. The Ninth Circuit decision below opens the door

to a burdensome and truly chilling wave of tort litigation against

amici and others for the mere exercise of their First Amendment

freedoms.

Amicus Anti-Defamation League (““ADL’’) was organized in

1913 to advance goodwill and understanding among Americans of

all races and creeds, and to combat racial and religious prejudice

in the United States. ADL is dedicated to exposing and counter-

acting anti-Semitism and bigotry of every kind and promoting and

Mrotecting civil rights and liberties.

ADL implements its mandate by educating and informing the

Jewish community and the general public about prejudice and

discrimination. One major component of ADL’s program is

communication regarding extremists and hate groups or others

whose actions and philosophies pose a threat to the mutual

respect and tolerance upon which the survival of our diverse and

pluralistic society depends.

In pursuing its fight against racism, anti-Semitism, and other

forms of bigotry, ADL has long relied on the free speech guaran-

tee of the First Amendment. Experience has shown that best

antidote for “bad speech” is more speech, and that when hatred

and bigotry are exposed, the vast majority of Americans will

reject them. Yet ADL’s speech activities often involve contrac-

tual relationships, as when racist groups have been given plat-

forms in concert halls or on media broadcasts, or their literature

has been given space in bookstores. From this perspective, the

ADL respectfully offers the Court its expertise on the impact the

threat of contract interference litigation can have on the exercise

of First Amendment nghts and the appropriate balance which

should be struck between the free speech and contractual nghts at

issue in this case.

The other amici have similar concerns. Amicus National Asso-

ciation of Evangelicals (““NAE”) is a nonprofit association of

evangelical Christian denominations, churches, organizations, in-

stitutions, and individuals. [t includes some 45,000 churches from

—

3

74 denominations and serves a constituency of approximately

15 million people.

Amicus Christian Legal Society (““CLS”’) is a nonprofit profes-

sional association, founded in 1961, with a nationwide member-

ship of 4,000 Christian attorneys, law students, law professors,

and judges. The CLS also has a legal information and advocacy

arm, the Center for Law & Religious Freedom, founded in 1979.

NAE and CLS are both extremely disturbed by the prospect of

harassing litigation against them, or any other civic or religious

organization, under the theories sanctioned by the Ninth Circuit’s

decision below. NAE and CLS engage in advocacy on a broad

range of issues including abortion, condom distribution, and

public school textbooks. As many of these issues involve contrac-

tual relationships, the Ninth Circuit’s decision threatens to allow

NAE’s and CLS’s First Amendment advocacy to be attacked

through burdensome tort litigation

Also joining in these concerns and this brief are other major

Jewish organizations. The amicus American Jewish Congress

(“AJC”) was founded in 1918 to protect the civil, economic,

political, and religious rights of American Jews. AJC’s ability to

fulfill this role depends on its ability to speak freely and vigor-

ously. The decision of the Ninth Circuit below impinges on AJC’s

freedom to speak.

In addition, amicus National Jewish Community Relations

Advisory Council (“NJCRAC”) is an umbrella organization

consisting of the following national member organizations: Amer-

ican Jewish Committee, American Jewish Congress, Anti-Defa-

mation League, B’nai B'rith, Hadassah, Jewish Labor

Committee, Jewish War Veterans of the United States of

America, National Council of Jewish Women, Union of Ameri-

can Hebrew Congregations, Union of Orthodox Jewish Congrega-

tions of America, United Synagogue of America, Women’s

League for Conservative Judaism, Women’s American ORT, as

well as 117 community member organizations (see Appendix)

representing all major Jewish communities in the United States.

As the national planning and coordinating body for the Jewish

community-relations field, dedicated to preserving the security of

4

the Jewish community and of the principles embedded in the Bill

of Rights, the NJCRAC believes that freedom of expression is an

essential bulwark in maintaining the individual, group, and politi-

cal equality of all Americans.

Finally, amicus Jewish Community Relations Committee, Jew-

ish Federation Council of Greater Los Angeles, an umbrella

organization representing some 500 community agencies in the

Greater Los Angeles area, joins in this brief separately given its

special interest in and familiarity with the area where the instant

case arose. Human relations agencies in Los Angeles have their

work cut out for them, and can ill afford the additional burdens of

reactive litigation just for speaking out forcefully on public issues

that happen to involve contracts.

ARGUMENT

I.

AN EXCEPTIONALLY IMPORTANT ISSUE OF CONSTI-

TUTIONAL LAW IS RAISED BY THE HOLDING OF

THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT REINSTATING RESPONDENT’S

CLAIM OF INTERFERENCE WITH A CONTRACTUAL

RELATIONSHIP.

A. THE HOLDING OF THE NINTH CIRCUIT HAS SIG-

NIFICANT NATIONAL IMPLICATIONS FOR THE

EXERCISE OF FIRST AMENDMENT FREEDOMS.

An essential teaching of New York Times v. Sullivan, 376 U.S.

254 (1964), is that state tort law carries no “talismanic” power to

limit the reach of First Amendment freedoms. Id. at 269. Instead

the application of tort sanctions must itself “be measured by

standards that satisfy the First Amendment.” Id.

In the present case a dividend panel of the United States Court

of Appeals for the Ninth Circuit ignored this fundamental teach-

ing. Over strenuous constitutional objection,’ and without any

'See Brief of Defendant-Appellees the Simon Wiesenthal Center and

Rabbi Marvin Hier, at 14-41.

5

First Amendment analysis whatever, the panel reinstated respon-

dent’s claim of tortious interference with contract. See 919 F.2d

538, 543 (9th Cir. 1990). Only in response to the powerful

dissents of Judges Kozinski and Reinhardt from an order rejecting

petitioners’ suggestion for rehearing en banc did the panel see fit

casually to observe that “liability for interference with contractual

relations” must be predicated upon “[s]peech or conduct that

falls outside the protection of the First Amendment...” Appen-

dix to Petition for Writ of Certiorari (““App.”) at A7 n.4.

The constitutionally important question, of course, is exactly

what speech interfering with contractual relations is protected by

the First Amendment. The panel opinion makes no effort to

address this question, whose vivid significance is manifest in this

very case, in which speech about matters of high public concern

has been circumscribed and chilled because of its negative impact

on a contractual relationship.

Vital expression about public issues will often impair contrac-

tual relationships.” This is frequently the very purpose and effect

of efforts to disseminate “information concerning the facts of a

labor dispute,” Thornhill v. Alabama, 310 U.S. 88, 102 (1940),

Debartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades

Council, 485 U.S. 568 (1988), or of efforts to persuade others to

support demands for “Racial Justice.” NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 898-901 (1982). It may be the

purpose and effect of legal and peaceful demonstrations organized

by groups seeking to dissuade medical clinics from performing

abortions, or of informational leafletting designed to pressure local

supermarkets to cease selling pesticide-treated food. To crudely

?The tort of contractual interference does not require an actual breach

of contract:

Plaintiff need not allege an actual or inevitable breach of contract

in order to state a claim for disruption of contractual relations. We

have recognized that interference with the plaintiff's performance

may give rise to a claim for interference with contractual relations if

plaintiff's performance is made more costly or more burdensome.

Pacific Gas & Electric Co. v. Bear Stearns Co., 50 Cal.3d 1118, 1129

(1990).

6

cabin speech about matters of public concern within the ring of

existing contractual relationships would be to abandon the First

Amendment aspiration to protect “the right to differ as to things

that touch the heart of the existing order.” West Virginia State

Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

The precise constitutional question posed by this case, then, is

whether and under what circumstances speech negatively affect-

ing contractual relations may be penalized by a tort. Lack of

clarity on this question chills speech, as amicus Anti-Defamation

League (“ADL”) has reason to know firsthand. A primary

institutional mission of the ADL is to oppose all forms of anti-

Semitic propaganda. This mission sometimes entails the disagree-

able task of informing bookstores of the anti-Semitic nature of

books they have contracted to sell, or radio stations of the anti-

Semitic nature of the programs they have contracted to broadcast,

or concert halls of the anti-Semitic nature of the speakers they

have contracted to feature. Although this speech involves matters

of public concern, it is fettered and constrained by uncertainty

over the reach of the tort of contractual interference. ADL is

forced to “steer far wider of the unlawful zone” for fear of

potential liability. Speiser v. Randall, 357 U.S. 513, 526 (1958).

The decision of the Ninth Circuit in this case will deepen this

inhibition.

ADL’s experience is by no means unique. Members of amicus

National Association of Evangelicals or of amicus Christian Legal

Society, for example, may have occasion to demonstrate against

school boards’ contracts to distribute condoms or to purchase

particular textbooks. The opinion of the Ninth Circuit casts a pall

of imprecision deeply inhibiting to these protected First Amend-

despite their occasional political differences, that a similar chill

will extend to any advocacy group that stakes out strong positions

in matters of passionate public controversy.

It is a matter of constitutional moment, therefore, that the

relationship between First Amendment freedoms and the tort of

contractual interference be clearly and precisely articulated. That

is why Judge Kozinski in his dissent characterized this case as one

“of exceptional importance.” App. at A39.

7

B. THE DECISION OF THE NINTH CIRCUIT AP-

PLIES A PATENTLY INCORRECT FIRST AMEND-

MENT STANDARD.

The tort of interference with contractual relationships does not

commonly raise serious constitutional issues because its usual

function is to regulate commercial behavior. That is plainly not

the function of the tort in this case, however, where, as the Ninth

Circuit noted, the Complaint contains no allegation of “some

identifiable pecuniary or economic benefit accrue[d] to defend-

ants that formerly accrued to plaintiff,” App. at A6, and where

the behavior at issue consists primarily of noncommercial speech

about matters of public concern. Given these two conditions, the

reach of the tort’s sanctions must constitutionally be defined with

that “precision of regulation” that is “the touchstone in an area so

closely touching our most precious freedoms.” NAACP v. Button,

371 U.S. 415, 438 (1963).

The essence of the applicable First Amendment standard was

set forth by this Court in NAACP v. Claiborne Hardware Co., 458

U.S. 886, 918 (1982): “While the State legitimately may impose

damages for the consequences of violent conduct, it may not

award compensation for the consequences of nonviolent, pro-

tected activity.” The tort of contractual interference imposes

damages on the basis of conduct whose “proximate result” is the

impairment of a contract. Abrams & Fox, Inc. v. Briney, 39

Cal.App.3d. 604, 608 (1974). It follows directly from Claiborne

Hardware that if the conduct alleged to have proximately caused

the impairment of a contract of speech, and if the speech is itself

“protected activity,” the application of the tort is forbidden by the

First Amendment.

Application of this standard obviously bars many of the allega-

tions in the instant Complaint. Even the Ninth Circuit panel

recognized (although belatedly) that the efforts of defendants

American Jewish Committee, Simon Wiesenthal Center, Inc., _

and Rabbi Marvin Hier (hereinafter referred to collectively as

“petitioners”) to lobby city and state officials are “plainly pro-

3See H & M Assoc. v. City of El Centro, 109 Cal.App.3d 399, 405

(1980); Restatement of the Law of Torts (Second) Section 766 (1977).

8

tected by the First Amendment,” and hence that the allegations

that these efforts proximately caused an impairment of contract

are constitutionally prohibited. Compare App. at A7 n.4 with

App. at A65-A66, A68 (Plaintiffs Second Amended Complaint

Nos. 27-28, 36-37).

Although the Panel’s opinion is not entirely clear, it apparently

rejected petitioners’ First Amendment defense because it found

that

Libera!ly construed, the complaint contains one allegation of

a specific threat — the AJC’s alleged statement to the CLA

[ California Library Association], “at the urging and request

and with the knowledge, approval and cooperation of De-

fendants Marvin Hier ... and Simon Wiesenthal Center”

that if the contracts with appellant were not canceled,

“[{djefendant CLA’s 1984 Annual Conference would be

disrupted, there would be damage to property and the CLA

would be ‘wiped out’

App. at A9. The exact meaning of this “specific threat,” however,

requires some clarification.

Respondent herself has acknowledged that the phrase “wiped

out,” which appears in paragraph 24 of the Second Amended

Complaint (App. A65), comes from a newspaper article that

refers to the potentially devasting effects on CLA of “organized

Jewish demonstrations.” Appellant’s Brief before the United

States Court of Appeals for the Ninth Circuit, at 32-35. And the

Ninth Circuit Panel makes clear in its opinion that its discussion

of property damage and disruption refers to petitioners’ alleged

threat “to disrupt [plaintiff's] presentation by creating a demon-

stration that [petitioners] knew and intended ‘would create a

reasonable probability of property damage and of violence against

Plaintiff and members of Defendant CLA’.” App. at Al0. See

Second Amended Complaint No. 32, at App. A67.

“The passage quoted in text comes from the section of the Panel’s

opinion that discusses the violation of the Unruh Act. We assume that

the Ninth Circuit would apply the same analysis to the tort claim.

9

The conduct which the Ninth Circuit found unprotected by the

First Amendment, therefore, consists of “threats” to engage in

effective and potentially violent demonstrations. It is clear, how-

ever, the demonstrations are constitutionally protected, even if

accompanied by a “reasonably probability” of property damage

and violence, so long as such damage and violence neither occurs

nor is imminently incited. Brandenberg v. Ohio, 395 U.S. 444, 447

(1969). That is the lesson of Terminiello v. Chicago, in which this

Court unequivocally extended constitutional immunity to an as-

sembly that “stirred people to anger, invited public dispute, or

brought about a condition of unrest,” 337 U.S. 1, 5 (1949), even

in the context of “a riot and...speech that provoked a hostile

mob and incited a friendly one, and threatened violence between

the two.” Id. at 13 (Jackson, J., dissenting).

Petitioners would thus be constitutionally immune from liabil-

ity for contractual interference if the CLA had canceled the

contract because petitioners had staged a tempestuous, unruly but

ultimately nonviolent demonstration. NAACP v. Clairborne

Hardware Co., 458 U.S. 886, 915-20 (1982). Hence the Ninth

Circuit is forced into the anomalous position of concluding that

petitioners’ “threat” to hold such a demonstration is constitution-

ally less protected than the demonstration itself. This position is

surely incorrect, for if a demonstration is constitutionally pro-

tected from the regulation of tort law, so also must be the stated

intention to engage in the demonstration.

It is true that the recipient of a “threat” of a potentially

disruptive demonstration might breach a contractual relationship

because of his fear that the demonstration might turn violent,

rather than because of the persuasive power of the demonstration

itself.° But is is constitutionally unacceptable to convert the

‘In this context the concept of “persuasion” must be broadly con-

strued. As this Court stated in Organization for a Better Austin v. Keefe,

402 U.S. 415, 419 (1971): “The claim that the expressions were

intended to exercise a coercive impact on respondent does not remove

them from the reach of the First Amendment. Petitioners plainly

intended to influence respondent’s conduct by their activities; this is not

fundamentally different from the function of a newspaper.”

10

recipient of such a “threat” into a censor of precious First

Amendment rights. The call for constitutionally protected activity

must itself be constitutionally protected. New York Times Co. v.

Sullivan, supra, 376 U.S. 254, 266. If petitioners had circulated

leafiets calling for demonstrations against CLA’s agreement with

plaintiff, and if these leaflets had themselves caused CLA to

breach the contract, petitioners could not constitutionally be held

liable for the tort of contractual interference. It would be a matter

of indifference whether CLA’s breach had been caused by the

persuasive power of the potential demonstrations or instead by a

fear of their possible violence.

In effect, therefore, the holding of the Ninth Circuit cedes

everything to the anxieties of an auditor, and it offers nothing to

the rights of a speaker to announce intentions to engage in

constitutionally protected activity. It thus subordinates speech to

“undifferentiated fear or apprehension,” which, “in our system,

... IS not enough to overcome the right to freedom of expression.”

Tinker v. Des Moines School Dist., 393 U.S. 503, 508 (1969).° It

follows that one must distinguish between an expression that

communicates an actual threat of violence and an expression that

announces an intention to engage in protected activity which an

auditor fears might turn violent. The latter merits constitutional

protection; the former does not.

The question posed by this case is how these two forms of

expression may be constitutionally distinguished. When speech

occurs in the course of volatile political controversy, this Court

has been careful to hold that the distinction between protected

and unprotected speech must be drawn clearly and precisely:

No federal rule of law restricts a State from imposing tort

liability for business losses that are caused by violence or by

threats of violence. When such conduct occurs in the context

of constitutionally protected activity, however, ‘precision of

regulation’ is demanded.

*The Ninth Circuit holding has the further and serious disadvantage

of creating an incentive to express fundamental disagreements through

demonstrations that may actually turn violent, rather than through the

admittedly peaceful conveyance of information about such

demonstrations.

1]

NAACP v. Clairborne Hardware Co., 458 U.S. 886, 916 (1982).

Precise regulation serves the important function of minimizing

the chill on protected speech.

This function would not be served by a rule that uses the

reactions of an auditor to distinguish between protected “threats”

of potentially disruptive demonstrations and unprotected threats

of violence. Such a rule would hold a speaker hostage to the

apprehensions of his addressee, and would have particularly

perverse consequences in a context like this, where an auditor has

every incentive to “hear” threats of violence so as to establish a

barrier against a subsequent suit for breach of contract, or at least

sO as to set up a potential indemnitor.

In analogous situations this Court has achieved the requisite

degree of legal precision by distinguishing protected from unpro-

tected speech through some form of scienter requirement. The

classic example is defamation, where the “actual malice” rule

demands that a public official or public figure plaintiff prove that

a “defendant in fact entertained serious doubts as to the truth of

his publication.” St. Amant v. Thompson, 390 U.S. 727, 729

(1968). This Court invoked a similar solution to the problem of

avoiding the chill that would result from imposing sanctions

“solely because of a citizen’s association with an unpopular

organization,” for it interpreted the Constitution as demanding

proof “establishing a knowing affiliation with an organization

possessing unlawful aims and goals, and a specific intent to

further those illegal aims.” Healy v. James, 408 U.S. 169, 186

(1972). And, in order to avoid the “self-censorship” that would

occur if booksellers were held strictly liable for possessing obscene

writings, this Court has held that the First Amendment mandates

that any “constitutionally permissible prosecution” include some

form of a “scienter requirement.” Smith v. California, 361 U:S.

147, 154 (1959).

In the circumstances of this case, therefore, the First Amend-

ment ought analogously to require that the distinction between

protected and unprotected speech be located in the intentions of

the speaker. Petitioners have a right to constitutional protection if

their intent was merely to affect the relevant contractual relation-

ship by virtue of proposed demonstrations, however volatile; but

12

they have no such right if their intent was instead to affect the

contract rights through threats of violence.

C. APPLICATION OF THE CORRECT FIRST AMEND-

_ MENT STANDARD REQUIRES THAT THE CLAIM

OF TORTIOUS INTERFERENCE WITH CON-

TRACT BE DISMISSED PURSUANT TO FED. R.

CIV. P. 12(b) (6).

This is not a case in which the tort of contractual interference

involves the regulation of commercial affairs. There is no claim

here of economic advantage. Because the speech involved in this

case is concededly about matters of vivid public concern, the First

Amendment requires allegation and proof of an interference with

contract through speech that intended to threaten violence, as

distinguished from speech that merely “threatened” demonstra-

tions carrying the potential for violence. Just as a complaint for

defamation by a public figure will be dismissed pursuant to Fed.

R. Civ. P. 12(b) (6) for failure to state a claim if it fails to allege

the First Amendment requirement of actual malice, see, e.g.,

Church of Scientology Intern v. Eli Lilly & Co., 778 F.Supp. 661,

666 & n.3 (S.D.N.Y. 1191); Lasky v. American Broadcasting

Co., Inc., 606 F.Supp. 934, 937 (S.D.N.Y. 1985); Barger v.

Playboy Enterprises, Inc., 564 F.Supp. 1151, 1156-57 (N.D. Cal.

1983), aff'd, 732 F.2d 163 (9th Cir. ), cert. denied, 469 U.S. 853

(1984), so also should a complaint for tortious interference with

contract be dismissed if it fails to allege the First Amendment

requirement of scienter or specific intention.

In this case, as the panel of the Ninth Circuit stated, even the

most generous interpretation of the Complaint can find only the

allegation that petitioners “intended to disrupt [plaintiff's] pres-

entation by creating a demonstration that appellees knew and

intended ‘would create a reasonable probability of property dam-

age and of violence against Plaintiff and the members of Defen-

dant CLA.’” App. at Al0. There are no claims that petitioners

“authorized, directed, or ratified” violence.’ NAACP v. Claiborne

’The only allegations even vaguely pertinent to such claims are that

the petitioners rented a conference room in the Westin Bonaventure

Hotel during the evening when plaintiff planned to present his program,

13

Hardware Co., 458 U.S. 886, 927 (1982). There are no claims, as

Judge Kozinski pointed out in his dissent, that petitioners

“threatened to break anybody’s kneecaps, or to plant a bomb, or

to have goons set fire to [plaintiff's] exhibit.” App. at A41. There

are no Claims that the demonstrations planned by petitioners were

not bona fide expressions of political conviction, or that petition-

ers’ references to these demonstrations were actually meant to

convey threats of violence, as distinguished from “threats” to

assemble in ways that carried the potential for violence.

It follows that the decision of the Ninth Circuit Court of

Appeals was incorrect, and that the federal district court was

justified in dismissing respondent’s claim for tortious interference

with contract pursuant to Fed. R. Civ. P. 12(b) (6).

Il.

A CLOSELY RELATED ISSUE OF CONSTITUTIONAL

LAW IS RAISED BY THE HOLDING REINSTATING

THE CLAIM UNDER CALIFORNIA CIVIL CODE SEC-

TION 51.7.

California Civil Code Section 51.7, popularly known as the

Unruh Act, provides:

All persons within the jurisdiction of this state have the right

to be free from any violence, or intimidation by threat of

violence, committed against their persons or property, be-

cause of their race, color, religion, ancestry, national origin,

political affiliation, sex, sexual orientation, age, disability, or

position in a labor dispute. The identification in this subdivi-

sion of particular bases of discrimination is illustrative rather

than restrictive.

Second Amended Complaint §§ 29-30, App. at A66-A67, and that

petitioners informed certain “militant” Jewish organizations about the

content of his “exhibit and program.” Second Amended Complaint

§§ 34-35, App. at A67-A68. Even if these allegations were accepted as

true, they would obviously not establish that petitioners authorized,

directed, ratified, or even condoned violence.

14

The district court dismissed a claim that petitioners had violated

the Unruh Act. The Ninth Circuit, over vigorous constitutional

objection,® reinstated the claim.

The factual allegations supporting the Unruh Act claim are the

same as those that support the claim for tortious interference with

contract. Second Amended Complaint §§ 62-65, App. at A74-

A75. The two claims thus raise essentially the same fundamental

constitutional question. That question is whether a State may

penalize speech which, in a context of a volatile poiitical contro-

versy, “threatens” to engage in constitutionally protected activity.

It makes no constitutional difference whether penalties are im-

posed pursuant to a statute or to a common law tort. What

matters is whether a State may sanction as “intimidation” the

announced intention to assemble in potentially disruptive

demonstrations.

Although it virtually ignored this question in its original opin-

ion, 919 F.2d 538, 545, the Ninth Circuit panel’s amended

decision argues that the expression of such an intention may be

penalized if it is “privately communicated,” as distinguished from

being broadcast through “public speeches.” App. at A10-11. But

this hastily constructed argument flatly contradicts Givhan v.

Western Line Consol. School Dist., 439 U.S. 410, 415-16 (1979),

which holds that First Amendment protections extend to speech

“communicate[d] privately” as well as to speech

“spread . . . before the public.” The constitutionally decisive ques-

tion is whether speech involves matters of public concern, not

whether it is disseminated through public or private channels. The

speech at issue in this case clearly does involve matters of public

concern.

The decision of the Ninth Circuit, if left standing, will trans-

form the Unruh Act into an instrument of repression, ready for

use by controversial groups willing to employ litigation to silence

those who would assemble to oppose them. The breadth of this

interpretation of the Unruh Act, far exceeding the inherently

more limited scope of the tort of contractual interference, ought

*See Brief of Defendant-Appellees the Simon Wiesenthal Center and

Rabbi Marvin Hier, at 14-41.

15

to be deeply disturbing to those who care to preserve the vital

national debate guaranteed by the First Amendment.

Because there is no allegation here that petitioners intended to

threaten violence, as distinguished from “threatening” to engage

in demonstrations that carried the potential for violence, the

decision of the Ninth Circuit Court of Appeals was incorrect. The

claim for violation of the Unruh Act ought to have been dismissed

pursuant to Fed. R. Civ. P. 12(b) (6).

Il.

CONCLUSION

This case raises exceptionally important issues of First Amend-

ment law. The decision of the Ninth Circuit gave only the most

casual and inadequate attention to these issues, and as a conse-

quence reached conclusions that are deeply inconsistent with

essential principles of freedom of expression. The effect of the

Ninth Circuit decision is likely to be profound and far-ranging.

We therefore respectfully urge this Court to grant certiorari in

this case.

ROBERT C. Post

1833 Berryman Street

Berkeley, California 94703

(510) 642-9523

Counsel of record:

ELLIoT L. BIEN

BIEN, SUMMERS & DALE

220 Montgomery Street

Suite 1210

San Francisco, California 94104

(415) 291-0300

Of counsel:

RUTH L. LANSNER

STEVEN M. FREEMAN

Anti-Defamation League

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Attorneys For Amici Curiae

la

APPENDIX |

MEMBER ORGANIZATIONS OF

THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL

Birmingham JCC

Greater Phoenix Jewish Federation

Tucson Jewish Federation of Southern Arizona

Greater Long Beach and West Orange County Jewish

Community Federation

Los Angeles CRC of Jewish Federation-Council

Oakland Greater East Bay JCRC

Orange County Jewish Federation

Sacramento JCRC

San Diego CRC of United Jewish Federation

San Francisco JCRC

Greater San Jose JCRC

Greater Bridgeport Jewish Federation

Greater Danbury CRC of Jewish Federation

Eastern Connecticut Jewish Federation

Greater Hartford CRC of Jewish Federation

New Haven Jewish Federation

Greater Norwalk Jewish Federation

Stamford United Jewish Federation

Waterbury Jewish Federation

JCRC of Connecticut

Wilmington Jewish Federation of Delaware

Greater Washington JCC

South Broward Jewish Federation

Greater Fort Lauderdale Jewish Federation

Jacksonville Jewish Federation

Greater Miami Jewish Federation

Greater Orlando Jewish Federation

Palm Beach County Jewish Federation

Pinellas County Jewish Federation

Sarasota-Manatee Jewish Federation

South County Jewish Federation

Atlanta Jewish Federation

Savannah Jewish Council

2a

Metropolitan Chicago JCRC of the Jewish United Fund

Peoria Jewish Federation

Springfield Jewish Federation

Indianapolis JCRC

South Bend Jewish Federation of St. Joseph Valley

JCRC of Indiana

Greater Des Moines Jewish Federation

Lexington Central Kentucky Jewish Federation

Louisville Jewish Community Federation

Greater Baton Rouge Jewish Federation

Greater New Orleans Jewish Federation

Shreveport Jewish Federation

Portland Southern Maine Jewish Federation-

Community Council

Baltimore JCRC

Greater Boston JCRC

Marblehead North Shore Jewish Federation

Greater New Bedford Jewish Federation

Springfield Jewish Federation

Worcester Jewish Federation

Metropolitan Detroit JCC

Flint Jewish Federation

Minneapolis Minnesota and Dakotas JCRC-

Anti-Defamation League

Greater Kansas City Jewish Community Relations Bureau

St. Louis JCRC

Omaha JCR Committee of Jewish Federation

Atlantic County Federation of Jewish Agencies

Central New Jersey Jewish Federation

Clifton-Passaic Jewish Federation

Delaware Valley Jewish Federation

Metrowest United Jewish Federation

Greater Middlesex County Jewish Federation

Northern New Jersey JCRC

Southern New Jersey JCRC of Jewish Federation

Albuquerque JCC

Binghamton Jewish Federation of Broome County

Greater Buffalo Jewish Federation

Elmira CRC of Jewish Welfare Fund

3a

Greater Kingston Jewish Federation

New York JCRC

Northeastern New York United Jewish Federation

Grerter Orange County Jewish Federation

Rochester Jewish Community

Syracuse Jewish Federation

Utica Jewish Federation

Akron Jewish Community Federation

Canton Jewish Community Federation

Cincinnati JCRC

Cleveland Jewish Community Federation

Columbus CRC of Jewish Federation

Greater Dayton CRC of Jewish Federation

Greater Toledo CRC of Jewish Federation

Youngstown JCRC of Jewish Federation

Oklahoma City JCC

Tulsa JCC

Portland Jewish Federation

Allentown CRC of Jewish Federation

Erie JCC

Greater Philadelphia JCRC

Pittsburgh CRC of United Jewish Federation

Scranton-Lackawanna Jewish Federation

Greater Wilkes-Barre Jewish Federation

Providence CRC of Rhode Island Jewish Federation

Charleston JCR Committee

Columbia CRC of Jewish Welfare Federation

Memphis JCRC

Nashville and Middle Tennessee Jewish Federation

Austin JCC

Greater Dallas JCRC of Jewish Community Federation

E] Paso JCR Committee

Fort Worth Jewish Federation

Greater Houston Jewish Federation

San Antonio JCR of Jewish Federation

Newport. News-Hampton United Jewish Community of

the Virginia Peninsula

Richmond Jewish Community Federation

Tidewater United Jewish Federation

a

4a

Greater Seattle Jewish Federation

Madison JCC

Milwaukee Jewish Council