IRVING R. KAUFMAN, Circuit Judge:
Social and political satire have long held a prominent place in the American literary landscape. From the witticisms 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 establishment shibboleths. Filmmakers like Preston Sturges have lambasted our most sacred institutions and modern newspaper readers daily have taken delight in the trenchant 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, appellee Stanley Brezenoff, Administrator of the Human Resources 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
This case, however, does not involve attempts by government 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 specifically 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' satirical 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, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686 (1964). Because a complete understanding of this nationwide 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 production and sales experience, concocted "Public Assistance— 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 working 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 recipients of public funds and the numerous obstacles purportedly confronting employed citizens. The game's working people are made to appear burdened by oppressive taxes, strangled by government regulations, and victimized by reverse discrimination. Conversely, those receiving welfare benefits are portrayed as lazy, dishonest and in some cases intoxicated and promiscuous individuals who take unfair advantage of government largesse. These players may procure additional monies by obtaining the assistance of an "ethnic lawyer" and by landing on squares marked "have an illegitimate child." Government 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 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
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 television.
Negative reactions were intense and immediate as outraged 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 Organization 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 cancelled 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 distorted 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 characterizations 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's letter, set forth in the margin,
Brezenoff received two initial responses.
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 decided 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 chosen not to sell Public Assistance before receiving Brezenoff'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 controversy in the press or by business reasons wholly unrelated 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 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 investigative 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 Hammerhead Enterprises initiated this action against Brezenoff 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 defendants except Brezenoff since no evidence was presented that they had participated in his decision to send the letter. On December 6, 1982, Judge Pollack also rejected appellants' claims against Brezenoff. Judge Pollack found Brezenoff acted in good faith when he attempted to persuade stores not to carry appellants' controversial game. The court also determined that Brezenoff'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, 551 F.Supp. 1360, dismissed the complaint in its entirety. Pramschufer, Johnson, and Hammerhead Enterprises appeal.
A. First Amendment Claim
We have emphasized that "[courts] must remain profoundly skeptical of government claims that state action affecting expression can survive constitutional objections." Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043, 1047 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (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 Assistance 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
Appellants invoke the spectre of government censorship. 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.
Appellants' efforts to fit this case under the rubric of Bantam Books, Inc. v. Sullivan, supra, are entirely unsuccessful. In that case, the Rhode Island Commission to Encourage Morality in Youth, whose practices were invalidated by the Supreme Court, had explicit statutory authority to recommend prosecution of distributors of books and magazines who continued to display publications 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 consequences 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.
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 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.
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. From 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 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, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (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, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (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 Audubon Society, Inc., supra, 556 F.2d at 121; Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977); Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).
Having carefully examined appellants' additional claims, we find them to be entirely without merit.