KRAVITCH, Circuit Judge:
The Church of Scientology of California (the Church) appeals from the district court's entry of summary judgment in favor of, and subsequent award of attorneys' fees to, Gabriel Cazares, Mayor of the City of Clearwater, Florida at the time this action was commenced.
Count I of the Church's third amended complaint was brought under 42 U.S.C. § 1983
The district court granted Cazares' motion for summary judgment on Count I finding that: (1) the Church as a corporation did not have standing to assert First Amendment rights of freedom of religion in a civil rights action, and (2) no genuine issue of material fact existed. Summary judgment on Count II was granted on the ground that the statements made by Cazares constituted mere opinions concerning the Church in its role as a public figure. In a subsequent action brought by Cazares and consolidated with the present case for purpose of review, the court found appellant's § 1983 claim groundless, frivolous and unreasonable and awarded attorneys' fees to Cazares.
For the reasons stated below, we disagree with the district court's conclusion that the Church lacked standing to bring an action under § 1983. We hold, however, that the court was correct in granting summary judgment on both counts of the Church's Third Amended Complaint and in finding that because appellant's civil rights claim was groundless, frivolous and unreasonable, appellee was entitled to attorney's fees. Accordingly, we affirm.
In October of 1975, a corporation known as Southern Land and Development and
As church employees moved into the hotel, a public controversy arose as to the type of religious organization that would use the facility. News media gave substantial coverage to the developments. On January 28, 1976, appellant Church of Scientology of California announced that it was directly connected with Southern Land Corp. and United Churches of Florida and would be utilizing the hotel for functions of the Church of Scientology of California.
During the progress of the news developments, appellee Gabriel Cazares, Mayor of the City of Clearwater, made statements on numerous occasions speculating as to the identity of the purchaser of the hotel and the purposes for which the hotel would be used. When the Church of Scientology of California revealed it was the true owner of the hotel, Cazares became one of its harshest critics.
According to appellant, Cazares' criticism was unlawful. In its Third Amended Complaint it contended that utilizing his power as Mayor of Clearwater, Cazares interfered with the Church's free exercise of religion by: making false and defamatory remarks, thereby turning the community against the Church and its adherents; inducing clergymen of other faiths to shun association with it and its adherents; inducing local city and state officials to undertake discriminatory and harassing actions and investigations of the Church; inducing civic organizations and other entities to shun association with the Church and its adherents and join public condemnation and ridicule of the Church; inducing the news media to refrain from publishing accurate information and/or favorable comments concerning the Church and to publish only adverse comments and false and derogatory information concerning the Church.
In granting Cazares' motion for summary judgment on the § 1983 count, the district court initially addressed the issue of standing. The court recognized that there were two possible theories under which a corporation might bring a civil rights action: (1) to protect the rights of its members; or (2) to protect its own rights as a corporate institution. The court found that the pleadings raised only the latter theory but that the Church would have standing under neither theory because: (1) there were no rights that could not be asserted by an individual member of the Church and no need for the Church to protect the rights of its members; and (2) as a corporation, the Church's right to free exercise of religion was not directly protected by the Civil Rights Act; thus the Church lacked standing to bring suit for the protection of its own rights.
In finding that the Church lacked standing to seek protection of the civil rights of its members the district court interpreted NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) in an unjustifiably narrow manner by requiring the presence of "unusual circumstances" before a corporation could sue on behalf of its members.
In NAACP, the State of Alabama brought an action in state court seeking to enjoin the NAACP from conducting activities in Alabama and sought records, including membership lists. The Alabama court held the Association in contempt for noncompliance with the order to produce records revealing the names of its members. NAACP sought certiorari to the United States Supreme Court urging two points: first, that it was constitutionally entitled to resist official inquiry into its membership lists; and second, that on behalf of its members, it was entitled to assert that their
One reason the Supreme Court upheld NAACP's standing to assert a constitutional right on behalf of its members was that to have held otherwise would have defeated the purpose of the suit. If the individual members had to be parties, they would have revealed their identity. Though that was certainly a reason for the decision, it was not the only reason. As the Court stated:
357 U.S. at 459-60, 78 S.Ct. at 1170-71. Nowhere in the opinion does the Court suggest that only in "unusual circumstances" can a corporation sue to protect the rights of its members.
In the present case the district court also denied the Church representational standing because it found there were no rights that could not be asserted by an individual member of the Church, thus there was no need for the Church to protect the rights of its members. An identical argument was implicitly rejected by the Supreme Court in Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In Hunt, a Washington state agency challenged the constitutionality of a North Carolina statute concerning the selling and shipping of apples in North Carolina. North Carolina challenged the commission's standing to bring the action on behalf of Washington state growers and dealers arguing, inter alia, that the growers and dealers "are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute's operation." 432 U.S. at 342, 97 S.Ct. at 2440. Using the analysis originally set forth in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), discussed infra, the Court found standing.
In denying representational standing to the Church, the district court also emphasized that the complaint did not specifically state that the Church was seeking to represent its members in the action. We are unaware of any authority that requires such an explicit statement. Indeed, in Congress of Racial Equality v. Douglas, 318 F.2d 95, 102 (5th Cir. 1963), we allowed CORE to assert the constitutional rights of its members although the pleadings did not specifically seek relief on behalf of any member. In that case the district court, at the behest of the Mayor of McComb City, Mississippi, and the owners of a bus station restaurant, enjoined CORE from encouraging blacks to utilize terminal facilities at the bus depot on the ground that CORE intended to provoke breaches of the peace. We reversed, holding that the injunction was an unconstitutional abridgement of First Amendment rights. We noted:
318 F.2d at 102 (emphasis added). In a vigorous dissent Judge Gewin questioned the grant of first amendment protection to a corporate defendant where pleadings were not filed on behalf of its individual members.
It is thus clear that the requisite for representational standing in this circuit is not necessarily an explicit statement of representation but a close nexus between the organization and its members, see NAACP v. Alabama, 357 U.S. at 458-59, 78 S.Ct. at 1169-70, and an allegation of injury to its members as a result of the action. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
Such an analysis finds support in Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), where the Supreme Court held that a union has standing under 42 U.S.C. § 1983 to assert violations of the First Amendment guarantees of freedom of speech and association. In a footnote the Court stated:
416 U.S. at 819 n.13, 94 S.Ct. at 2202 n.13 (emphasis added).
In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme Court succinctly set forth the circumstances under which an organization or association has standing to bring an action as the representative of its members:
422 U.S. at 511, 95 S.Ct. at 2211.
Thus, in determining whether an association has standing to bring suit on behalf of its members, neither unusual circumstances, inability of individual members to assert rights nor an explicit statement of representation are requisites. An association has representational standing when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington Apple Advertising Commission, 432 U.S. at 343, 97 S.Ct. at 2441.
The prerequisites to associational standing described in Warth and reaffirmed in Hunt are clearly present here. If, as claimed by the Church, its members were harassed and abused to the extent that they could not freely exercise their religious beliefs, then certainly the members would have standing to sue in their own right. Moreover, according to the complaint, the purpose of the Church is to "service.... The spiritual desires and needs of its numerous members and others throughout the United States and elsewhere ..." It can fulfill this purpose only if its members are allowed to engage in the free exercise of
We are cognizant that the Supreme Court, in Harris v. McRae, ___ U.S. ___, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), noted that a free exercise claim is "one that ordinarily requires individual participation." In McRae the Court held that the Women's Division of the Board of Global Ministries of the United Methodist Church lacked standing to raise a free exercise challenge to the Hyde Amendment. Because the Women's Division conceded that "the permissibility, advisability and/or necessity of abortion according to circumstance is a matter about which there is diversity of view within ... our membership, and is a determination which must be ultimately and absolutely entrusted to the conscience of the individual before God," the Court concluded that the participation of individual members of the Women's Division was essential to a proper understanding and resolution of their free exercise claims. Id. at 2690. In McRae only an undetermined percentage of the membership had a personal stake in the controversy, i. e., it was not alleged how many members (1) were eligible to receive Medicaid; (2) were or expected to be pregnant; and (3) as a matter of religious belief would choose to terminate pregnancy by abortion.
The present case differs from McRae in a significant respect: the conduct challenged in the complaint uniformly affected the entire membership of the Church of Scientology in Clearwater. The complaint does not allege that the defendant harassed only certain members of the Church; the allegations refer to "the Church, its ministers and adherents." Moreover, the complaint alleges that defendant chilled, deterred, prevented, and inhibited plaintiff in the free exercise of religion, "including use of its property for that purpose." Thus, because the religious activity of the members was inherently intertwined with the services and facilities of the Church, the actions complained of affected every member of the Church in Clearwater. Accordingly, the claims could properly be presented by the Church on behalf of its members.
III. Civil Rights Claim
Because of its legal determination that the Church did not have standing to bring the civil rights action, the court granted the Mayor's motion for summary judgment as to Count I without making any specific findings. It concluded, however, that "[b]ased upon the entire record there is no deprivation of the First Amendment right of either the Church or its members."
Under Fed.R.Civ.P. 52(a), findings of fact are not necessary for decisions granting summary judgment.
Although we hold that the district court applied an incorrect legal standard in finding the Church without standing, if it is apparent on appeal that no genuine issue of fact exists under the proper legal analysis, we may uphold the grant of summary judgment. See, e. g., International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. National Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d 1139 (D.C.Cir.1978); Fed.R.Civ.P. 56(c).
In the first count of its complaint
The Mayor moved for summary judgment with a supporting memorandum of law and supporting affidavits from the defendant, a member of the clergy in the Clearwater area, and the city fire marshal. After the Church filed its memorandum in opposition to the motion for summary judgment, the district court granted summary judgment for the Mayor.
The Church claims that the district court erred in granting summary judgment because of the existence of numerous factual disputes, to wit:
(2) Whether the Mayor sought to cause an unwarranted FBI investigation of the Church. According to a memo purportedly written by an FBI member, the Mayor allegedly called the FBI and told the agent that he had information on the Church which might be useful in that "it might constitute a federal violation." The FBI reacted, according to the memo, by reopening its file. In his April 20, 1976 deposition the Mayor admitted talking to the FBI but said nothing came of the conversation. Later in his deposition he said he had no evidence that a crime had been committed.
Even assuming the FBI memo is admissible (which is highly unlikely because there is no sworn testimony to properly identify it), it raises no issue of material fact. There is no evidence that the FBI followed up the call from Cazares with any action that could be considered violative of the Church's civil rights. Neither was the Mayor's calling the FBI a civil rights violation. Not only did he not urge the FBI to do anything against the Church; according to the memo, he said he was not in any particular hurry to discuss the matter further.
(3) Whether the Mayor had sought to induce action by state officials against the Church. In a letter which he allegedly wrote to the Secretary of State, the Mayor cited "an apparent infraction of law" committed by the Church. Apparently, Cazares thought the Scientologists might be in violation of Chapters 104 and 106 of the Florida Statutes regarding elections.
There is no allegation that any action resulted from the Mayor's inquiry. Presumably, the Secretary of State decided no laws had been broken and the matter was not pursued. Certainly, the Mayor did not violate the civil rights of the Church or its members by pointing out what he thought was an infraction of the law, especially when there was no follow-up on the matter by the authorities.
(4) Whether the Mayor's public statements were the proximate cause of threats of physical attacks on members of the Church and the hostile public climate in the Clearwater area. There are affidavits that the Church and its members suffered threats of physical harm that interfered with their free exercise of religion. However, there is nothing in the record but the unsupported conjecture of some of the Church members that the Mayor was the proximate cause of their troubles. Many Clearwater residents had strong negative feelings about the Church, much of which stemmed from the methods used by the Church in acquiring the Fort Harrison Hotel and the fear the townspeople had of religious beliefs completely alien to their own. Certainly, the Mayor did little to help matters with his outspoken opposition to the Church. Nevertheless, there is no admissible evidence directly linking the Mayor's public statements to the hostile public climate in Clearwater towards the Church and its members.
(5) Whether the Mayor told an Assistant Attorney General that "he wanted to go on record as vehemently opposed to the closing of the file" on the Church. Again, this dispute is not material to the legal question of whether the Church's civil
(6) Whether the Mayor sought to induce businessmen and organizations to shun association with the Church. Based on the answers in the deposition of Mr. Popp, a local Lutheran Church minister, the Scientologists claim the Mayor intended to convince the business community that it was dangerous to allow the Church quietly to buy property in Clearwater, and thereby to increase its political clout in the area. In his affidavit Cazares states he has never induced civic organizations to shun association with the Church. This, too, does not raise a dispute as to material facts.
There is no admissible evidence showing that the Mayor's warnings caused a single businessman or organization to shun the Church. This does not mean the Church may not have been shunned; rather, there is no evidence of a nexus between the Mayor's statements and the alleged ostracism.
The Church identifies a number of other allegedly factual disputes, but these also are either immaterial to the civil rights claim, based on inadmissible evidence, or fail to show a causal relationship between the Mayor and the alleged infringement of civil rights. We agree with the district court's conclusion that no genuine issue of material fact exists as to Count I. The record fails to show that the Mayor deprived either the Church or its members of any First Amendment right. Accordingly, we affirm the grant of summary judgment as to the civil rights claim.
IV. The Defamation Action
In Count II of its Amended Complaint the Church claimed that Cazares maliciously made a number of statements that defamed the Church. In partially granting defendant's Motion to Dismiss, the trial court struck three of the allegedly defamatory statements from the Amended Complaint, holding that they did not state claims upon which relief could be granted based on theories of libel and slander.
On appeal the Church argues that the Mayor's statements were capable of defamatory meaning and in any event the court should not have decided the question at the Motion to Dismiss and Summary Judgment stages.
Although in Belli we reversed because we found that the publication was capable of a defamatory meaning, we did not hold that summary judgments or motions to dismiss are necessarily inappropriate in all defamation cases. In his special concurrence Judge Godbold noted that a judge is not precluded from finding defamation exists as a matter of law. 389 F.2d at 589. Nor is a judge precluded from finding, as a matter of law, that the publication was not defamatory. Thus, in Southard v. Forbes, 588 F.2d 140 (5th Cir. 1979), a lawsuit involving a public figure, summary judgment was held to be appropriate on both the questions of defamation and actual malice.
In the present case the Church admits it is a public figure within the doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Thus, the Church may not recover for a simple defamatory statement. The statement must be shown to have been made with "actual malice" — that is with knowledge that it was false or with reckless disregard of whether or not it was false.
Under Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the plaintiff must show also that the defamatory falsehood was a false statement of fact as opposed to pure comment or opinion.
418 U.S. at 339-40, 94 S.Ct. at 3006-07.
Recent Florida decisions define the law of that state. In Palm Beach Newspaper, Inc. v. Early, 334 So.2d 50 (Fla.Dist.Ct.App. 1976), cert. denied, 354 So.2d 351 (1977), the court applied the principles of New York Times and Gertz to defamatory actions in Florida. In Early the court overturned a $1,000,000 jury verdict in a libel action brought by a superintendent of schools against a newspaper and certain members of its editorial staff. The court found that words and phrases, such as "cheating," "stealing from the public," and "fingers in the pot," when read in their proper context, were not defamatory. Other charges made by the newspaper were either protected opinion based on fact and thus not false, not made with malice under the New York Times standard or "rhetorical hyperbole" — statements made in "the conventional give and take in our economic and political controversies." In holding that there was no defamation, the court stated:
334 So.2d at 53.
In Coleman v. Collins, 384 So.2d 229 (Fla.Dist.Ct.App. 1980), the court reaffirmed the holding of Early. The plaintiff in Coleman
In the present case the Church contends that the following statements allegedly made by Cazares were defamatory:
(1) An article published in the Clearwater Sun on March 24, 1976, stated in pertinent part:
On summary judgment the court held that neither Cazares' use of the phrase "helter-skelter" nor his statements to the press at various times critical of the Church were defamatory.
While we do not find the Mayor's "helter-skelter" statement humorous, neither do we consider it defamatory. Reading the statement in context there is no indication that the Mayor was accusing the Church of advocating mass murder. Apparently, "gung-ho" and "clear" have double meanings associated with Scientology. The Church would have us infer that helter-skelter as used in the Mayor's statement refers to the name of a book dealing with Charles Manson. We then must infer that since Manson is considered by some — but not the Church — to be a "clear," the Mayor was trying to connect the Church with Manson. Finally, we are to infer that since Manson was a mass murderer the Mayor's comment suggested Scientology promoted mass murder.
We are not prepared to build inference upon inference in order to find defamatory meaning in a statement. Because the Mayor's statement was not capable of defamatory meaning as a matter of law, the trial court was correct in granting summary judgment. As to the other statements made by the Mayor that were before the trial court on summary judgment, after carefully examining the voluminous record in this case, we agree with the trial court that:
(2) An article published in The Globe and Mail on May 8, 1976, stated in pertinent part:
(3) An article published in the Clearwater Sun on January 29, 1976, stated in pertinent part:
(4) During a Lions Club luncheon speech, the Mayor stated that the Church of Scientology was not a religious organization as "religion" was understood in the Clearwater area, but a "rip-off, money motivated operation."
Read in context, the statements by the Mayor quoted in The Globe and Mail article were not defamatory. The Mayor did not allege that the Church was engaged in illegal wiretaps. Rather, the Mayor's statements demonstrated a paranoia-like perception of a Scientologist lurking behind every mystery, in this case unknown voices on an office speaker.
Nor do we find Cazares' statement that he did not like paramilitary organizations defamatory. It was simply an opinion based in fact: the statement reflects his perception of the armed guards and security devices.
Finally, the court dismissed as not defamatory the Mayor's characterization of the Church as a "rip-off, money motivated operation." The allegation was struck on a 12(b)(6) motion, Fed.R.Civ.P. For purposes of a motion to dismiss, we must assume the allegations in the petition were correct: that the statement was made, that it was false, and that it was made with malice. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, in evaluating the statement to determine whether the words used were capable of defamatory meaning, the words cannot be considered in isolation but must be viewed in the context of the statement as a whole. Here, in comparing the appellant Church to religious organizations as religion is understood in Clearwater, the Mayor termed appellant a money motivated rip-off. Under the most recent articulations of Florida law (Coleman, supra, and Early, supra), the words "rip-off," read in context, although uncomplimentary, were not defamatory as a matter of law, and the trial court properly granted defendant's motion to dismiss.
V. The Protective Order
In April and May of 1976, the Mayor was deposed by the Church. Since that time the Church amended its complaint and introduced what it considered to be "new" evidence. In the spring of 1978, the Church sought to depose Cazares again regarding this "new" information and other recent developments in the case. On May 22, 1978, the Mayor moved for a Protective Order, stating that no new issues had been pled since the original deposition. On May 31, the district court granted the Motion for Protective Order, at the same time staying all discovery until the hearing on the Motion for Summary Judgment.
The Church argues that the court erred in limiting the Church's discovery by not allowing it to depose the Mayor nor conduct any further discovery prior to the summary judgment hearing.
The trial court has wide discretion in determining the scope and effect of discovery, Blum v. Gulf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), and his rulings are subject to the abuse of discretion standard of review. Perel v. Vanderford, 547 F.2d 278 (5th Cir. 1977).
Cazares had been deposed once. The "new" information about which the Church wished to question the Mayor involved no issues of material fact.
VI. Attorneys' Fees
After granting defendant's motions for summary judgment, the district court considered defendant's application, as the prevailing party in the § 1983 count, for the award of attorneys' fees. The court granted the defendant's motion for fees and directed the parties to submit affidavits or other evidence as to the amount thereof.
The court next conducted an evidentiary hearing in which it considered and made findings with regard to each of the criteria suggested in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The court's award to Cazares of $36,021.75 in attorneys' fees is appealed by the Church.
In § 1983 actions, awards of attorneys' fees are governed by 42 U.S.C. § 1988, which states in pertinent part:
The court's discretion is limited, however, to the extent that a prevailing defendant can recover only if the plaintiff's claim was "frivolous, unreasonable, or groundless, or ... plaintiff continued to litigate after it clearly became so." Lopez v. Aransas County, Independent School District, 570 F.2d 541, 545 (5th Cir. 1978), citing Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978).
In the present case the Church argues the action was not frivolous, unreasonable or groundless because: (1) the court sustained the complaint for over two years; (2) evidence supported the claim; and (3) the judge himself stated the action presented novel legal issues.
The fact that the court sustained the complaint for over two years is a tribute to the trial judge's patience and fairness, not an indication of his view of the merits.
We agree with the trial court that the civil rights action was frivolous, unreasonable and groundless. Accordingly, an award of attorneys' fees to the defendant was justified.
There is no statute providing for attorneys' fees in a diversity defamation action. Thus, had this suit been brought only on Count II, attorneys' fees would not have been recoverable. Fees were recoverable on Count I, however, and here the court based its award on both the civil rights and the defamation action. The court explained:
Several circuits have held that where a civil rights claim is made, a successful claimant may also collect attorneys' fees concerning legal actions or counts which come from or arise out of the same "nucleus of facts."
In the present case both counts arose out of the same nucleus of facts. Indeed, the first complaint filed by appellant alleged the defamatory statements by defendant as a part of the § 1983 claim. Because a defamation claim may not serve as the basis of a § 1983 suit, appellant was required to amend its complaint and plead the alleged defamation as a separate count. Appellants did not file the Third Amended Complaint until two years after the original complaint. Under these circumstances, it would be impossible to accurately apportion the time appellee's attorneys spent on the civil rights claim and on the nonfederal defamation claim. We hold, therefore, that the district court did not err in granting attorneys' fees for the entire case.
Appellant next argues that the district court erred in awarding attorneys' fees to Cazares in view of the fact that he was covered by insurance. According to the Church, under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), a party cannot be awarded a higher fee than he is contractually obligated to pay: since Cazares was covered by insurance, he was not contractually obligated to pay any fee and thus should not be awarded any fee.
This argument ignores Cazares' attorney's statements that Cazares' insurance was one of indemnity: that the company was not required to pay unless Cazares was obligated to pay after termination of the case. See also Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978), where an award of attorneys' fees was not precluded by the fact that the litigants were represented by attorneys of a publicly funded corporation and were not charged for legal services they received in a 42 U.S.C. § 1983 action.
Finally, appellant contends that the court erred in awarding Cazares attorneys' fees without allowing the Church to depose Cazares' attorneys as to the time and nature of their services. Cazares' attorneys argue that the Church's proposed depositions were acts of harassment and that forcing the attorneys to go over their time slips would be an undue burden. The judge issued a protective order and held an evidentiary hearing at which the question of discovery was considered. The court then ordered the case to proceed without further discovery as to the exact amount of time expended by Cazares' attorneys.
It does not appear that further discovery was warranted. The Church had interrogated Cazares' attorney at length. The attorney had provided in his affidavit a detailed record of time spent and duties performed. Besides, under Johnson, time spent on a claim is only one factor to be considered in the award of fees.
Here, the court indicated it was intimately familiar with the litigation and was satisfied with the correctness of its award which it considered extremely low. We find no abuse of discretion.
In summary, we hold: (1) the Church had representative standing in the § 1983 action; (2) the district court correctly dismissed three allegedly defamatory allegations; (3) the district court correctly entered summary judgment on both counts; (4) the district court correctly found the civil rights claim was frivolous, groundless, and unreasonable and appellee was entitled to attorneys' fees; (5) the fees were properly based upon the entire case, both counts arising from one nucleus of facts; (6) the district court correctly awarded attorneys' fees to Cazares although he was covered by insurance; and (7) the district court correctly refused to allow the Church to depose Cazares' attorneys as to the time and nature of their services.
Accordingly, the judgment is AFFIRMED.
318 F.2d at 104-05.
416 U.S. at 829-30, 94 S.Ct. at 2207.
Since our decision in Brown, the Supreme Court in First National Bank v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), has held that corporate speech is protected by the First Amendment, even if the speech does not pertain to the corporation's business or property. See also Advocates for the Arts v. Thomson, 532 F.2d 792 (1st Cir. 1976) (corporation as an institution has standing to assert violations of the First and Fourteenth Amendments under 42 U.S.C. § 1983).
In Bellotti, the Court did not address "the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment." 435 U.S. at 777, 98 S.Ct. at 1416. However, the Court did offer some guidance in determining which constitutional rights a corporation may assert:
435 U.S. at 779 n.14, 98 S.Ct. at 1417 n.14. Thus, the question of whether a corporation may assert a right to free exercise of religion depends on whether the right to free exercise is "purely personal" which in turn depends on the "nature, history and purpose" of the free exercise clause. We leave the answer to this question for another day.
It should be noted, however, that even if a corporation is not entitled to the protection of the free exercise clause of the First Amendment, it would nevertheless have standing to protect its economic and property rights. See Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Watchtower Bible and Tract Soc'y v. Los Angeles County, 181 F.2d 739 (9th Cir. 1950); Church of God v. Monroe-Ouachita Regional Planning Comm'n, 404 F.Supp. 175 (W.D.La.1975).
In Paragraph 5 of the Third Amended Complaint, the Church alleges that the Mayor engaged "in a course of conduct, practice and policy designed to and having the effect of chilling, deterring, preventing and inhibiting Plaintiff in the free exercise of religion under the First Amendment to the United States Constitution, including use of its property for that purpose ...." (emphasis added) Construing the complaint liberally, such an allegation might well be sufficient to give the Church standing to sue to protect its right to use its property for the free exercise of its religion. Such an action would, of course, rely more heavily on the Fourteenth than the First Amendment.