Weiss v. Willow Tree Civic Ass'nWeiss v. Willow Tree Civic Ass'n
OPINION
What essentially was, and remains, a local zoning dispute is now before this Court upon a variety of claims charging violation of plaintiffs’ federal statutory and constitutional rights. Plaintiffs, a congregation of Hasidic Jews who desire to establish a housing development on land they own in Ramapo, New York, claim that defendants, the Willow Tree Civic Association (the “Association”) and its members have conspired and acted to harass and delay plaintiffs’ application to the zoning authorities of Ramapo for a permit authorizing the proposed housing development. Plaintiffs assert that defendants’ actions violate their federal civil rights protected by
In 1977, plaintiffs, doing business as B.Y.S. Associates (“B.Y.S.”), purchased a total of twenty-two acres of undeveloped land in the Town of Ramapo. Their intention was to build a residential housing development so that the members of their congregation, then living in the Williams-burgh area of Brooklyn, New York, could settle in Ramapo. Such a development required compliance with Ramapo’s zoning procedures and regulations. The Town of Ramapo Code provides that a developer must file an application for a “special permit” with the Town Board (the Town’s legislative body).
1
If the Town Board grants the special permit for “average density development,” the developer then is required to submit to the Town’s Planning Board two “sketch plats,” or maps of the proposed
Plaintiffs, in accordance with the prescribed procedures, on December 9, 1977, submitted their application for a special permit to the Town Board, which scheduled a hearing for its meeting on January 25, 1978. In the interim, according to plaintiffs’ complaint, opposition to the B.Y.S. application arose in the community. A number of the defendants attended the Town Board meeting on January 25 and voiced opposition to the proposed development, allegedly raising many technical and procedural matters not ordinarily presented at such a hearing and mаking allusions to the “peculiar way of life of ‘these people’ ” [plaintiffs]. 3 Plaintiffs claim that the comments of the defendants then present were calculated “to intimidate the Town Board of the Town of Ramapo and to cause the Town Board to handle the application of plaintiffs differently than other applications are routinely handled . . because of the race and religion of the applicants.” 4 The Board unanimously granted the special permit but, because of the objections raised at the meeting, stipulated that the Planning Board give careful consideration to possible drainage, retention of water and silting problems in the area of the proposed development — matters which, according to the complaint, ordinarily were not included in the Board’s resolutions.
On March 6, 1978, plaintiffs proceeded to the second stage оf the procedure by filing two sketch plats (containing alternative layouts) with the Planning Board. The complaint further alleges that after the filing, defendants engaged in a concerted plan to delay the consideration of their application and to pressure town officials so that they would deny it. First, plaintiffs assert that in furtherance of the conspiracy, defendant Rhona Schneiderman filed a frivolous complaint with the New York State Department of Environmental Conservation, the purpose and effect of which was to delay the processing of the application of the B.Y.S. until the Department determined whether the plaintiffs’ land contained sufficient “wetlands” to merit state regulation. Second, it is alleged that as part of the conspiracy, oh May 12, 1978, four of the individual defendants filed an Article 78 state court proceeding against the Town and plaintiffs 5 that was wholly without mеrit and solely designed to harass plaintiffs and to frustrate their development plans and to cause them to abandon the project.
Finally, the complaint alleges that the defendants formalized their conspiracy by organizing the Association so as “to promote as astutely and covertly as possible under the guise of civic concern the conspiracy to deny the plaintiffs equal protection of the laws.”
6
It is plaintiffs’ contention that because of the clandestine as well as open pressure exerted by the Association before and during the Planning Board meeting of May 2, 1978, the Board rejected the sketch plat, not only delaying plaintiffs’ application, but also imposing upon them the burden of another filing fee. B.Y.S. filed a second set of sketch plats, which
Defendants assert' that their opposition to the B.Y.S. application stems solely from the swamp-like nature of plaintiffs’ land and the already overburdened and unsatisfactory town drainage and sewage facilities, and that unless the zoning regulations were complied with the proposed development would create additional problems for the community. Furthermore, the Association argues that its good faith opposition is supported by two reports to the Planning Board by the CDRC; the reports found many problems with the sketch plats, including inadequacy of their drainage analysis, and concluded that “a greаt part of this land is unsuitable for development, as it is a swamp.” 8 Therefore, the Planning Board’s rejections of the sketch plats on May 2 and July 25, 1978, were, according to defendants, grounded upon the CDRC’s findings, not any improper pressure brought to bear by defendants.
On July 28, 1978, plaintiffs, instead of submitting a third set of sketch plats, as was their right under the Ramapo zoning laws, 9 initiated the present action against the Association and its members. The complaint seeks, as against the members collectively and individually, punitive and compensatory damages, the latter based upon the extra administrative fees and professional or miscellaneous expenses incurred by the need to submit new sketch plats, the increased (mortgage and construction) cost resulting from the loss of a building season due to the delays in processing the subdivision application, and the affronts to plaintiffs’ dignity as citizens because of the аlleged bias and discrimination. Additionally, plaintiffs ask for an injunction dissolving the Association and prohibiting future conspiracies by the individual defendants against plaintiffs.
Defendants move the Court to dismiss the complaint and present three arguments in support of their position: first, that this Court should abstain from exercising jurisdiction and should remit plaintiffs to their legal and equitable remedies under state and local law; second, that the complaint fails to allege, and cannot in good faith allege, facts necessary to state a cause of action under the various civil rights statutes; and, third, that defendants’ conduct as described in the complaint is wholly protected by the First Amendment and therefore is not actionable under federal law. This Court is not persuaded that it should abstain in the case,
10
but concludes that the
I
On a defendant’s motion to dismiss for failure to state а claim for which relief may be granted, the Court must accept the allegations of the complaint as true and should not grant the motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
11
In broad terms, the complaint alleges that plaintiffs’ constitutional rights to equal protection and treatment in the processing of the zoning application and to free travel were violated by a conspiracy engaged in by the defendants to delay and obstruct their application for a zoning permit and to influence public officials to deny it, and that the conspiracy was effectuated by defendants’ attending meetings before official bodies, filing a groundless complaint with a state agency, instituting a meritless action in the state courts, forming a civic organization, placing an advertisement in a lоcal paper, distributing handbills, and conducting public meetings for the purpose of arousing and encouraging opposition to the application. Based thereon, the complaint alleges violations of three provisions of the civil rights laws,
A
Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To state a claim for relief under section 1983, plaintiffs must allege, first, that defendants have deprived them of a right secured by the Constitution or laws of the United States, and, second, that defendants deprived them of that right acting under color of a state law. The Supreme Court recently held in Flagg Brothers, Inc. v. Brooks, 12 that for claims under the Fourteenth Amendment, both elements of section 1983 require state involvement. Where their main claim for relief is grounded upon Fourteenth Amendment rights, plaintiffs’ injuries amount to constitutional “deprivations” only if effectuated or authorized by the State; and, in any event, the requirement that defendants act under “col- or of law” means that the deprivation must be effected through state involvement or participation, even where the underlying right is protected from both governmental and private interference. 13
The complaint alleges no state or municipal activity and all the defendants are private parties. Indeed, the plaintiffs have not named any of the town officials as defendants or alleged co-conspirators. Plaintiffs, however, seek to satisfy the state
To accept plaintiffs’ contention upon the allegations of their complaint would be an unwarranted extension of the symbiotic relationship concept that when the State has so significantly insinuated itself into the affairs of a private person or entity it thereby becomes a co-participant in the claimed acts.
14
State action can only be effected by the act of the sovereign, not by a plethora of private power. “The focus is not on the private deprivation but on the state authorization.”
15
Thus the Supreme Court has made it patently clear that state action will not be attributed to the private enterprise unless the government actually compels the private action
16
or unless it has vested in the private group the right to exercise a function that is an exclusive prerogative of the sovereign.
17
In the present ease, there are no allegations — indeed such allegations could not in good faith be made — that the Town compelled the civic association to act as it did or gave it public powers that are the exclusive prerogative of sovereignty. If state action were not found in
Flagg Brothers,
where a warehouseman proposed to sell plaintiff’s property to satisfy a lien for storage pursuant to the provisions of a state law authorizing such a sale, this case, with its complete
Plaintiffs argue, in the alternative, that the acts of defendants constitute state action because they are willful participants in joint activity with a municipal official, Herbert Reisman, to deprive plaintiffs of their constitutional rights. 18 This argument is fatally flawed by plaintiffs’ failure to join Reisman as a defendant in this action. Moreover, based on the representations made in plaintiffs’ brief and at oral argument, it is clear that the defect would not be rectified in the event plaintiffs applied for leave to amend the complaint to inсlude Reisman as a defendant. To establish the requisite state involvement in the conspiracy, plaintiffs must allege with some particularity that the public defendant acting in his official capacity conspired with the private defendants to deny plaintiffs their rights; “vague or conclusory allegations” of official participation are not sufficient to withstand a motion to dismiss. 19 Plaintiffs contend only that Reisman is “an elected member of the Rockland County Legislature, a resident of the Willow Tree Civic Association area, an acknowledged member of the Willow Tree Civic Association, and ... a salaried (part time) political mentor and strategist for the present Superviser of the Town of Ramapo.” 20 They do not assert that Reisman, as to the zoning application, acted in any official capacity to injure plaintiffs, and no charges have been made that any municipаl official was improperly influenced by Reisman. 21 In sum, the plaintiffs have failed to set forth allegations required to establish public participation in the alleged private conspiracy. Since state action is an essential element in all section 1983 claims, plaintiffs’ complaint fails to state a cause of action thereunder.
B
Section 1985(3) provides as follows:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of havingand exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
The Supreme Court in Griffin v. Brecken ridge 22 held that to state a cause of action under section 1985(3), the complaint must allege that
the defendants did (1) “conspire ...” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” . . [and] that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.” 23
The Court held that a section 1985(3) claim does not require as an element that defendants acted under color of law but does require that plaintiffs establish “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” 24
The complaint here meets the first and third elements of the Griffin test, and since plaintiffs are an ethnic and religious class, their allegations of discrimination are “class-based.” 25 The issues, then, are whether defendants conspired for the purpose of depriving plaintiffs of rights or privileges of citizens of the United States and did deprive plaintiffs of such rights or privileges. 26 Plaintiffs argue that the conspiracy deprived them of (1) their right as national citizens to travel interstate, which is enforceable against private parties, and (2) the Fourteenth Amendment’s guarantees of equal protection (equal treatment in the processing of their zoning application) which, plaintiffs argue, Congress extended to cover private conduct when it enacted section 1985(3).
The
Griffin
Court held that section 1985(3) provided a remedy for persons assaulted during their interstate travel on the public highways.
Griffin
was based upon the power vested in Congress under section two of the Thirteenth Amendment to create a statutory cause of action in favor of Negroes who were the victims of “conspiratorial, racially discriminatory private action” aimed to deprive them of their basic rights.
27
The Court also premised its hold
Accordingly, all of plaintiffs’ claims for a section 1985(3) remedy — based on alleged violations of their rights of intrastate travel and equal protection and privileges— find their substantive foundation in the Fourteenth Amendment. The basic question is whether a claim under section 1985(3) that private persons conspired to deprive plaintiffs of their Fourteenth Amendment rights requires as an essential element state involvement. The
Griffin
Court, which, as already nоted, geared its holding to section two of the Thirteenth Amendment, expressly reserved the questions whether section 1985(3) extends the Fourteenth Amendment’s guarantees to private conduct absent state action, and whether Congress could do so pursuant to section five of that Amendment.
30
The issue, a close one, has divided Justices of the Supreme Court,
31
Courts of Appeals
32
and
First, while it is true that section 1985(3) omits the color of law language contained in section 1983, it, like section 1983, requires that defendants’ conduct cause a deprivation of plaintiffs’ constitutional or statutory rights. The Griffin Court held that the absence of the color of law language mаkes certain private conspiracies actionable under section 1985(3), but the Flagg Brothers Court indicated that the deprivation language of section 1983 may be an independent basis for the requirement of state involvement, since “most rights secured by the Constitution are protected only against infringement by governments.” 34 This view, drawing the state action requirement from the “deprivation” element, in addition to the “color of law” element, of section 1983, suggests that section 1985(3) claims grounded on the Due Process or Equal Protection Clauses of the Fourteenth Amendment must involve state action since the Fourteenth Amendment proscribes state, not private, deprivation of a citizen’s rights. 35
Second, in interpreting section 1985(3), it must be presumed that Congress acted within its clear constitutional powers.
36
Although section five of the Fourteenth Amendment gives Congress broad power to enforce the Amendment, the grant оf authority is circumscribed by the purpose of the Amendment itself, which is to protect against state action.
37
To read section 1985(3) as extending the guarantees of the Fourteenth Amendment to cover private conduct would require a clear, affirmative statement of congressional intent, because of inherent constitutional problems with such an extension;
38
there is no such
Third, the available evidence illuminating Congress’ intent indicates that section 1985(3) should only be read as a remedial statute that does not expand upon existing federal rights:
No one has the absolute right to complain of every instance in which the action of others infringes upon his own behavior. It is only when that action is unlawful that an individual has legal cause to complain of his injury. Consequently, given the remedial nature of section 1985(3), we think it entirely clear that the statute was not designed to redress every interference with one’s behavior, even when that behavior is the exercise of what we describe as a “fundamental right”. Instead, we are persuaded that the object of a section 1985(3) conspiracy must be to deprive another of the enjoyment of legal rights by independently unlawful conduct 41
For example, Senator George Edmunds, the floor manager of the bill in' the Senate, stated that “[a]ll civil suits which the Act authorizes, as every lawyer understands, are not based оn it, they are based on the rights of the citizen. The Act only gives a remedy.” 42 The Third Circuit in Novotny v. Great American Federal Savings & Loan Ass’n 43 has reviewed the pertinent legislative history and concluded that “§ 1985(3) may not be construed as a warrant to impose wide-ranging new duties upon private individuals in the interests of abstract equality.” 44
The foregoing considerations require the conclusion that section 1985(3) should- not be interpreted to provide a remedy for claims grounded on the Fourteenth Amendment, absent state action. Since the plaintiffs in this case have not alleged, and clearly cannot allege, state involvement sufficient to establish state action, their section 1985(3) claim must be dismissed.
C
Plaintiffs’ final claim for relief rests upon
The
Mayer
Court, however, also held that the statute “deals only with racial discrimination and does not address itself to discrimination on grounds of religion or na
II
The complaint’s failure to allege the threshold requirements for relief under the civil rights laws would alone justify granting defendants’ motion to dismiss. However, other considerations of more compelling force require dismissal of the complaint. A fair reading of its allegations makes it clear that plaintiffs’ claims under
An overview of this case as pleaded by plaintiffs reveals, at most, a concerted effort by defendants to speak out against the proposed B.Y.S. development and to utilize various legal channels to oppose the application for a permit. Plaintiffs do not assert violence, threats, physical intimidation, libel, slander, fighting words, perjury, fraud, bribery, or any misrepresentation of law or facts on the part of defendants. 49 They contend that defendants assembled in large numbers to present their objections at public meetings, petitioned the executive and legislative authorities of the Town and State to oppose the development, and formed an association which distributed pamphlets and took a public position on an issue that was of great concern to them. Carried to its logical extreme, plaintiffs’ position would question the “principle that the debate on public issues should be uninhibited, robust, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” 50
Plaintiffs purport to recognize defendants’ First Amendment rights, but assert that nonetheless “the real motivation” for defendants’ activities was to pressure town officials and harass plaintiffs, not to air public issues openly; thus, plaintiffs argue, defendants are not entitled to the im
First, the complaint alleges that defendants sought to intimidate the Town Board and Planning Board by assembling in large numbers at public meetings and speaking against the B.Y.S. zoning application. Whatever its subjective impact on the officials of the Town, such action was nothing more than peaceable assembly petitioning municipal authorities for redress of grievances and is thereby entitled to First Amendment protection. 53 Thus in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. 54 the Supreme Court held that the right to petition governmental bodies that make and enforce the law is central to our representative democracy, because “these branches of the government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.” 55
Similarly, the state lawsuit^ brought by four defendants and the complaint filed with the New York agency in charge of environmental conservation fall within the right to petition. In
California Motor Transport Co. v. Trucking Unlimited
56
the Supreme Court extended the philosophy of
Noerr
to govern “the approach of citizens or groups of them to administrative agencies . . . and to courts . . . Certainly, the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”
57
Finally, the formation of the Willow Tree Civic Association, even for the purpose of formally organizing the community against the plans of the plaintiffs, was constitutionally privileged.
58
To label defendants’ asso
Plaintiffs respond by reliance upon the Supreme Court’s holding in California Motor Transport that the right to petition is not without its limits. The complаint in that case alleged that the purpose of the conspiracy was to put the plaintiff out of business and to establish a monopoly. In furtherance of the conspiracy, defendants purportedly engaged in sham proceedings before administrative and judicial tribunals; the claim was that the “machinery of the agencies and the courts was effectively closed to respondents” by “a pattern of baseless, repetitive claims” that, if borne out at trial, would constitute abuse of the judicial process 60 and that the defendants became, in fact, the regulators of plaintiff’s enterprise. The Court was of the view that if these allegations were true, the defendants had violated the compelling public policy of the antitrust laws and that their conduct abusing judicial procedures went beyond the ambit of the First Amendment protection.
The facts in the instant case are a fаr cry from the complaint upheld in California Motor Transport or, for that matter, the one dismissed in Noerr. In the former ease the defendants alleged conduct that not only violated the antitrust laws, but effectively deprived plaintiffs of the machinery of the agencies and the courts. Plaintiffs here allege no facts that even approach those in California Motor Transport. Their allegations are that part of the means employed to impede their application for a zoning permit involves a single lawsuit against the Town and plaintiffs and an administrative inquiry initiated at the instigation of one of the defendants. Even if both were groundless, they hardly amount to grave abuse of those processes as to bar plaintiffs from responding to the claims made before those bodies. Indeed, plaintiffs do not allege that they were prevented from responding to the charges. Moreover, the complaint makes it clear that they were not denied access to the Plаnning Board which heard and considered their applications. The complaint’s description of defendants' active lobbying before the Town Board and Planning Board, bodies making and enforcing the Ramapo zoning laws, pales into insignificance when compared with the railroad’s publicity campaign depicted by the Noerr Court as “malicious in that its only purpose was to destroy the truckers as competitors, and fraudulent in that it was predicated upon the deceiving of those authorities through the use of the third-party technique.” 61 Yet the complaint was dismissed by the Court in Noerr, as it should be dismissed here. Virtually all the conduct alleged against defendants falls squarely under Noerr’s conclusion that the First Amendment protects “attempts to influence the passage or enforcement of laws,” no matter how harmful their incidental impact on third parties may be. 62
The actions attributed to the defendants upon which plaintiffs predicate their claims under
Plaintiffs by their pleading have sought to transmute a zoning dispute, still pending, into assorted claims of violation of federally protected constitutional rights. To uphold the complaint would, as Judge Waterman stated in a similar context, “be inviting every party to a state proceeding angered at delay to file a complaint in this court reciting the history of his state case and concluding with a general allegation of conspiracy.” 66 Such was not the intendment or purpose of the civil rights acts.
Accordingly, the Court dismisses the complaint for failure to state a claim for which relief can be granted.
Notes
. Ramapo Code § 46-13.1. The application is initially reviewed by the Administrative Assistant to the Boards and Commissions of the Town of Ramapo, and he submits his evaluation to the Town Clerk, who notices thе application for a public hearing. Within thirty days of the hearing, the Town Board renders its decision whether to grant the special permit.
. The minimum acreage required for a single family residence is 50,000 square feet. However, variances may be granted upon a concept of “average density development.” One sketch plat depicts a hypothetical development meeting the minimum requirements (50,000 square feet) and the other depicts the proposed average density layout with building lots smaller than the minimum sized lots.
. Complaint '' 19. Plaintiffs allege that as a part of their religious practice and way of life they dress and worship in a manner different from persons living in the area in which the property is located.
. Id.18, 19.
. N.Y.Civ.Prac.Law & Rules §§ 7801-7806 (“Proceeding against Body or Officer”).
. Complain t 29.
. Id. 11 49.
. Def.Exh. D;
see
Def.Exhs. E, F. The defendants submitted affidavits and exhibits in support of their motion that the Court abstain in this case. Those affidavits have not been considered on the defendants’ motion tо dismiss under
. Evidently they subsequently did, since an affidavit filed in support of the motion to abstain states that on November 28, 1978, the Planning Board granted plaintiffs’ application for sketch plat approval, but that they made no further application to either the Town or the Planning Board for approval of either “clustering” or average density use, as would be required under the town zoning procedures.
. “[T]here is substantial authority for the proposition that abstention is not favored in an equal protection, civil rights case brought as was this one under
.
Conley v. Gibson,
.
.
Id.
at 155-56,
. See
Jackson v. Metropolitan Edison Co.,
.
Flagg Bros., Inc. v. Brooks,
.
See Flagg Bros., Inc. v. Brooks,
.
See Flagg Bros., Inc. v. Brooks,
.
See Adickes v. S.H. Kress & Co.,
.
Ellentuck v. Klein,
. Memorandum of Law in Support of the Sufficiency of the Complaint, at 9-10; see Reply Affidavit of John McAlevey II 13 (similar allegation).
. Even if such charges could be made in good faith, they would face the obstacle that Reisman or town officials may be protected from federal scrutiny into their legislative motivations and, therefore, immune against damage liability under the civil rights statutes.
See Gillibeau v. City of Richmond,
.
.
Id
at 102-03,
.
Id.
at 102,
. The prevailing test is that “[t]he ‘class-based, invidiously discriminatory animus’ referred to in
Griffin
relates to ‘that kind of irrational and odious class discrimination akin to racial bias — such as discrimination based on national origin or religion.’ ”
Cartolano v. Tyrrell,
.
.
.
.
See King v. New Rochelle Municipal Hous. Auth.,
.
. In interpreting
. The Second Circuit has not resolved this issue,
see Weise v. Syracuse University,
. Compare Frantz, Congressional Power to Enforce the Fourteenth Amendment against Private Acts, 73 Yale L.J. 1353 (1964) (Congress has the power) with Note, Federal Power to Regulate Private Discriminations: The Revival of the Reconstruction Era Amendments, 74 Colum.L.Rev. 451, 516-17 (1974) (issue still unresolved in courts).
.
.
Dombrowski v. Dowling,
.
United States v. Harris,
. Section one of the Fourteenth Amendment provides: “nor 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” (emphasis supplied). Section five provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
.
Compare Bellamy v. Mason’s Stores, Inc. (Richmond),
.
National League of Cities v. Usery,
.
.
McLellan v. Mississippi Power & Light Co.,
. Congr. Globe, 42d Cong., 1st Sess. 568 (1871).
.
. Id. at 1248.
.
.
Id.
at 413,
.
See, e. g., Olzman v. Lake Hills Swim Club, Inc.,
. Memorandum of Law in Support of the Sufficiency of the Complaint, at 22, 25 & 26; Complaint
passim.
While the Court has, as previously noted, not considered any affidavit under the
. Certain means of expression are not given First Amendment protection.
See Gertz v. Robert Welch, Inc.,
.
New York Times v. Sullivan,
. Memorandum of Law in Support of the Sufficiency of the Complaint, at 13-15.
.
See Police Dep’t of Chicago
v.
Mosley,
.
See Aknin v. Phillips,
.
.
Id.
at 137,
.
.
Id.
at 510,
. The “right of association” has been read into the guarantees of the First Amendment by the Supreme Court, “because it promotes and may well be essential to the ‘[effective advocacy of both public and private points of view, particularly controversial ones’ that the First Amendment is designed, to foster.”
Runyon v. McCrary,
. See cases cited in note 52 supra.
.
.
.
Id.
at 135,
.
Id.
at 138,
. Judge Brieant reached a similar conclusion in
Aknin v. Phillips,
.
Accord, Stern v. United States Gypsum, Inc.,
.
Powell v. Workmen's Compensation Bd.,