707 F.

2d 33
9 Media L. Rep. 1636

HAMMERHEAD ENTERPRISES, INC., Ronald Pramschufer,

and Robert
Johnson, Plaintiffs-Appellants,
v.
Stanley BREZENOFF, Mayor and City Council, and the City
of
New York, Defendants-Appellees.
No. 1111, Docket 83-7014.

United States Court of Appeals,

Second Circuit.
Argued April 7, 1983.
Decided April 28, 1983.

David Tichane, New York City (Luther C. West, West, Carey, Frame &
Barnstein, Baltimore, Md., of counsel), for plaintiffs-appellants.
Arnold Stream, New York City (Frederick A.O. Schwarz, Jr., Corp.
Counsel, Francis F. Caputo, George Gutwirth, New York City, of
counsel), for defendants-appellees.
Before KAUFMAN and NEWMAN, Circuit Judges, and LASKER,
District Judge.*
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.
2

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 selfgovernment. See Federal Election Commission v. Hall-Tyner Election
Campaign Committee, 678 F.2d 416 (2d Cir.1982), cert. denied, --- U.S. ----,
103 S.Ct. 785, 74 L.Ed.2d 992 (1983); Edwards v. National Audubon Society,
Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54
L.Ed.2d 498 (1977); see also International Society for Krishna Consciousness
Inc. v. Barber, 650 F.2d 430 (2d Cir.1981), vacated and remanded on rehearing,
672 F.2d 900 (2d Cir.1981) (unpublished order).

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.
5

* 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 financing and commenced manufacturing the first copies of
Public Assistance. At the same time, the young entrepreneurs took steps to
ensure that sales of the game which retailed for $15.95 would not depend upon

mere word of mouth. They quickly contacted their local newspaper, the
Annapolis Evening Capitol, and succeeded in obtaining an article describing
their controversial creation and detailing the negative reactions of a local
community agency representative. In light of the inflammatory nature of the
game, it should come as no surprise that this initial effort to garner publicity
soon resulted in the widespread media attention appellants so evidently desired.
8

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.

10

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.1 Brezenoff discussed his decision with no city officials other
than his assistant, Ann Whalen, who aided in drafting the challenged
communication, and an HRA staff attorney.

11

Brezenoff's letter, set forth in the margin,2 urges the stores to refrain from
carrying Public Assistance. It lauds recent improvements in the administration
and management of the welfare system, and elucidates the harsh reality that a
NYC family of four receiving public assistance is forced to survive on a meager
$374 per month (excluding rent and medical care). Brezenoff also expresses his
opinion that appellants' creation "does a grave injustice to taxpayers and
welfare clients alike." The letter closes with the exhortation, "Your cooperation
in keeping this game off the shelves of your stores would be a genuine public
service."

12

Brezenoff received two initial responses.3 Monica Hollander of Brentano's

wrote to express her store's "complete agreement" with Brezenoff's point of
view, and to inform him that the store's buyer, Michael Botti, had decided
before receiving Brezenoff's letter not to order Public Assistance. Peter
Oechsle, President of F.A.O. Schwarz also sent a letter explaining that his store
had rejected the game "several months ago."4 Brezenoff took no further steps to
trace the consequences of his correspondence. He did not investigate whether
any merchants were in fact carrying the game nor did he contact any
government agency which might have regulatory authority over New York
department stores.5 The HRA has no such administrative power.

13

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.

14

The growing public controversy surrounding Public Assistance continued

throughout the late fall of 1980. On November 30, 1980, the New York Times
published an article describing the game and the negative responses it had
provoked. Kathy Groudine, a struggling freelance writer, spotted the column
and decided to write about the game for a Libertarian newspaper. In addition,
the New York Daily News printed two stories concerning the game, the latter

not only discussing the product but also mentioning the Brezenoff letter. In
spite of all this publicity, or perhaps because of it, Hammerhead Enterprises
sold 10,000 Public Assistance games during the 1980 Christmas season.
15

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.

16

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. Sec. 1343 (jurisdictional counterpart of 42
U.S.C. Sec. 1983) and 28 U.S.C. Sec. 1332 (diversity).

17

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.

18

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.
II
A. First Amendment Claim
19

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 to conscience and decency," Brezenoff's pleas would have
been equally immune from appellants' challenge had they been based on the
views of a society which this or any court found wholly repugnant. See Roth v.
United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308-1309, 1 L.Ed.2d 1498
(1957) ("unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion--have the full protection of [constitutional]
guarantees.")

20

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.6 Where comments of a
government official can reasonably be interpreted as intimating that some form
of punishment or adverse regulatory action will follow the failure to accede to
the official's request, a valid claim can be stated. Similarly, claimants who can
demonstrate that the distribution of items containing protected speech has been
deterred by official pronouncements might raise cognizable First Amendment
issues. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9
L.Ed.2d 584 (1963).7 We have already noted, however, appellants cannot
establish that this case involves either of these troubling situations.

21

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.8
Moreover, the evidence indicates that not a single store was influenced by
Brezenoff's correspondence. The challenged communication, therefore, was
simply not part of an "informal system of censorship." Bantam Books, Inc. v.
Sullivan, supra, 372 U.S. at 71, 83 S.Ct. at 640.
22

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.
Accordingly, we find Brezenoff did not violate appellants' First Amendment
rights by sending the November 5, 1980 letter.9

B. Libel
23

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.

24

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 socalled "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.
25

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).10

C.
26

Having carefully examined appellants' additional claims, we find them to be

entirely without merit.11 Appellants ask this Court to award them damages for
injury they have not proved and to immunize them from criticism they have
shown no reluctance to inflict on others. We decline to do so. Accordingly, the
judgment of the district court is affirmed.

Of the United States District Court for the Southern District of New York,
sitting by designation

The letter was sent to Abraham & Strauss; Alexander's; B. Altman & Co.;
Bloomingdale's; Gimbels; Hammacher-Schlemmer; Lord & Taylor; Macy's;
Saks Fifth Avenue; F.A.O. Schwarz; Brentano's; Barnes & Noble; and Toys-RUs

Brezenoff sent the following letter to the thirteen department stores and mailed
a copy to Edward T. Weaver, executive director of the American Public
Welfare Association, a private group attempting to thwart sales of the game:

Dear Mr. ____________

As you may know, there is a new board game on the national retail market
called "Public Assistance." I am writing to urge that ____________ refrain
from carrying this game in its stores.
"Public Assistance" is not, as its inventors claim, a harmless spoof of welfare
cheats and liberal government bureaucrats. It is an ugly and damaging slam at
this society's poorest citizens, 60 percent of whom are children.
A welfare family of four in New York City receives public assistance and food
stamp benefits of $374 a month to cover everything--food, clothing, utilities,
carfare, and the other necessities--except rent and medical care. That works out
to about $3.01 per person per day. The maximum the family can receive for
rent is $218 monthly.
Besides lampooning the painful financial situation of those who struggle to get
by on that amount in this economy, the game also denigrates the very real
progress over the past decade in reforming administration and management of
the welfare system. Locally, error rates in payment and eligibility are now a
fraction of what they were just seven years ago; caseloads are down to their
lowest levels since 1972; and more able-bodied welfare recipients are being
removed from the rolls and put to work in productive jobs than at any other
time in the City's history.
The system is still imperfect, but we are working hard to improve it, and the
"welfare mess" of the old days is gone.
By perpetuating outdated myths, I believe the "Public Assistance" game does a
grave injustice to taxpayers and welfare clients alike; by its insensitivity and
plain shoddiness, it is a discredit to those associated with its manufacture and
marketing.
Your cooperation in keeping this game off the shelves of your stores would be a
genuine public service.
With thanks and best wishes.
Sincerely,
3

Subsequently, in March 1982, Brezenoff received a copy of a letter sent by

Leonard Riggio, President of Barnes & Noble, to appellants' attorney, David
Tichane. This correspondence revealed Riggio had read Brezenoff's November
5, 1980 letter and thrown it away

Appellants correctly point out that their game had been on the market only a
few weeks in November 1980 when F.A.O. Schwarz received the Brezenoff
letter. Oechsle's exaggerated estimate of "several months," however, does not
undermine the basic import of his letter that his store's decision not to carry
Public Assistance was not influenced by the challenged communication

Appellants' only allegation that Brezenoff invoked coercive government power

is based on the unusual vigilance of New York fire inspectors during the 1980
Christmas season. No evidence, however, suggests Brezenoff ever
communicated with fire department officials or that the inspectors singled out
stores carrying the game

Since appellants have failed to establish any constitutional violation, we need

not address the competing First Amendment considerations of Brezenoff's own
right to speak

Appellants' inability to prove that Brezenoff's letter could reasonably be viewed

as threatening or that any one was in fact intimidated by his correspondence
makes it unnecessary for us to determine whether the former, the latter, or both
showings are requisite elements of a First Amendment violation

Appellants suggest that Brezenoff somehow engaged in "follow-up action"

when he mailed a copy of the challenged letter to Edward Weaver, executive
director of the American Public Welfare Association. The contention that
merely writing to a private party constituted a government conspiracy to censor
the controversial game is as spurious as it appears. Equally frivolous is
appellants' reliance on fire inspections performed during the Christmas season
of 1980. Appellants have demonstrated no connection whatever between these
inspections and Brezenoff's activities. See note 5 supra

Appellants also raise vague allegations of impermissible "infringement" of their

right to speak. As we set forth in the text, we find nothing unconstitutionally
odious in Brezenoff's conduct. This case does not involve an indirect restriction
on appellants' exercise of political rights. Cf. Bates v. Little Rock, 361 U.S.
516, 523, 80 S.Ct. 412, 416-417, 4 L.Ed.2d 480 (1960) (invalidating local
ordinance requiring disclosure of names of members in local NAACP since this
"would work a significant interference with ... freedom of association"). Rather,
appellants are being "forced" only to endure a conflict with Brezenoff's own
political views

10

Since we conclude Brezenoff's letter was not libelous, we need not consider
whether appellants would be required to comport with the "actual malice"
standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964) or the "gross irresponsibility" standard set forth in

Chapadeau v. Utica Observer Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61,
341 N.E.2d 569 (1975). We also need not determine whether Brezenoff's
remarks were protected by an absolute or qualified privilege pursuant to the
principles of Clark v. McGee, 49 N.Y.2d 613, 427 N.Y.S.2d 740, 404 N.E.2d
1283 (1980)
11

The district judge correctly determined appellants failed to show any

participation by other City officials in Brezenoff's decision to send the letter.
Since we find Brezenoff committed no compensable injury, the other
defendants cannot be liable under the doctrine of respondeat superior