Hammerhead Enterprises, Inc. v. Brezenoff, 81 Civ. 3054 (MP).

• Decision Date: 06 December 1982
• Docket Number: No. 81 Civ. 3054 (MP).,81 Civ. 3054 (MP).
• Citation: 551 F. Supp. 1360
• Parties: HAMMERHEAD ENTERPRISES, INC., Ronald Pramschufer, and Robert Johnson, Plaintiffs, v. Stanley BREZENOFF, Mayor and City Council, and the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

551 F. Supp. 1360

HAMMERHEAD ENTERPRISES, INC., Ronald Pramschufer, and Robert Johnson, Plaintiffs, v. Stanley BREZENOFF, Mayor and City Council, and the City of New York, Defendants.

No. 81 Civ. 3054 (MP).

United States District Court, S.D. New York.

December 6, 1982.

COPYRIGHT MATERIAL OMITTED

Luther C. West, Baltimore, Md., David Tichane, Brooklyn, N.Y., for plaintiffs.

Frederick A.O. Schwarz, Jr., Corp. Counsel by George Gutwirth, New York City, for defendants.

DECISION AND OPINION

MILTON POLLACK, District Judge.

This suit was instituted for injunctive relief and compensatory and punitive damages for alleged defamation, and interference with commercial relations and with free speech. The claims were heard at a Bench trial without a jury. Jurisdiction of the Court is posited on diversity, 28 U.S.C. § 1332, and Civil Rights 42 U.S.C. § 1983, 28 U.S.C. §§ 1343(3) and (4).

The Claims Asserted

On May 20, 1981, plaintiffs instituted this suit against Stanley Brezenoff, individually and in his official capacity as Administrator of the Human Resources Administration and Commissioner of Social Services of the City of New York, against the Mayor and the City Council of New York City and against the City of New York.

The occasion for the suit was a letter written about an adult parlor game created and marketed by the plaintiffs. On November 5, 1980, Mr. Brezenoff sent a letter to the chief executive officers of thirteen department, toy and book stores with headquarters in the greater New York area. Mr. Brezenoff's letter¹ criticizes a so-called "spoof" — a board game entitled, "Public Assistance: Why Bother Working for a Living?" (Public Assistance) which was invented, manufactured and marketed by the plaintiffs, Ronald Pramschufer, Robert Johnson, and Hammerhead Enterprises, Inc.²

At the close of trial, the Court dismissed the claims against the Mayor of New York City, the City Council, and the City of New York as defendants; no evidence was adduced that these parties knew of the letter or were involved in the events leading to this dispute; what evidence there was in these areas was conclusive that those defendants had no knowledge or involvement in any of the matters dealt with herein. Decision was reserved as to the individual liability of Mr. Brezenoff, who, being the only one remaining before the Court will be referred to as the defendant.

The proof presented at the trial consisted of testimony of witnesses, depositions and exhibits. On due deliberation and weighing the evidence, circumstances and probabilities and assessing the credibility of witnesses, judgment must be entered in favor of the defendant due to the failure of the plaintiffs to carry their burden of proof to establish any of their claims by a fair preponderance of the credible evidence.

I. The Game

"Public Assistance" falls into the broad genre of parlor board games epitomized by "Monopoly". While circling the playing board, each player attempts to accumulate simulated money by remaining on welfare and avoiding work. Plaintiffs describe their game as a "spoof", "a commercial satire" on the welfare system in that it lampoons able-bodied welfare recipients and public administrators. In essence, in Mr. Brezenoff's opinion, the game portrays welfare clients as lazy, loafing, intoxicated, dishonest; and promiscuous, describes welfare administrators as lazy dupes of the clients; and suggests that politicians indiscriminately heap benefits upon welfare recipients. The game also plainly makes derogatory reference to "ethnic lawyers" and "landlords", to crime as an income supplement to welfare benefits and to the financial benefits under the welfare system of having illegitimate children. Plaintiffs have stipulated that they have no expertise in welfare matters; that they do not consider themselves experts, or even knowledgeable about welfare issues.

At the games' inception in the early fall of 1980, the plaintiffs did not allocate any funds for advertising nor did they have a formal marketing or media strategy. Nonetheless, plaintiffs testified that they hoped and anticipated that some individuals would enjoy and support the game while others would oppose it. Plaintiff Johnson testified that the game concerned a great public issue in this country and that it would elicit response. Plaintiffs attempted to evoke this response in October 1980 by contacting local Maryland newspapers to request that they publish articles concerning the game. Moreover, Mr. James Dunnigan, plaintiffs' expert on the marketing of games testified that the game was highly marketable due to its controversial nature: it would appeal to some and turn others off.

Some of those who were turned off publicly voiced their opposition, displeasure and disgust concerning the game and its tart message prior to November 5, 1980. Secretary of Health and Human Resources, Patricia Harris, publicly deplored the game "as callous, sexist and racist," and as a "vicious brand of stereotyping". Carl Snowden, a leader of a local anti-poverty group in Annapolis, Maryland, pronounced the game "obnoxious and close to bordering on racism". Snowden was quoted as calling for the Maryland and Washington National Association for the Advancement of Colored People to consider a boycott of the game. The game has attracted negative comment from the National Organization for Women and from the National Association of Social Workers.

The game, plaintiffs' statements to the media and the above and other public reactions generated widespread media coverage of the controversy surrounding the game. Stories concerning the game and its criticism were reported locally in many cities and nationally by the Associated Press. Plaintiff Johnson and Carl Snowden appeared on the nationally televised "Donahue segment" of the "Today Show" prior to November 5, 1980 to comment and be interviewed on the game and the political and social views espoused thereby. Some of the media coverage mentioned possible boycotts of the game.

The individual plaintiffs both testified that they believed that the statements found on the game board and on cards contained in the game — in their opinion — accurately or nearly accurately portrayed abuses that existed in the welfare system. They further contended that they sought to exploit and lampoon these alleged abuses to make money from the sale of their game.

Based on the exhibits, the testimony of witnesses including that of the plaintiffs and an assessment of the credibility of that testimony, the Court finds that by the plaintiffs' own conduct they have thrust themselves into the general public controversy and its political and social ramifications concerning welfare and into the forefront of the specific public controversy concerning the appropriateness and good taste of board games and pretended "spoofs" that reflected on and criticized the recipients of and manner in which public assistance is afforded, administered and used. Plaintiffs' purpose was to foment that controversy by taking a distinct political and social position in order to influence and augment sales of the game. During the Fall of 1980, the plaintiffs had repeated and continuing access to local and national media and were in position to promote and defend their game against attacks.

II. Purpose and Intent of the Brezenoff Letter

Acting on his own initiative, with the editorial assistance of his secretary, Stanley Brezenoff, on his official stationery of Administrator/Commissioner of the Human Resources Administration, wrote the form letter quoted at footnote 1 above to thirteen chief executives of retail establishments consisting of department, toy and book stores in the New York City area on November 5, 1980.³ On its face there is nothing libelous in the letter, nor are the words and phrases defamatory or those normally used to intimidate or threaten. The plaintiffs nonetheless claim to be particularly offended by the last two paragraphs of the letter:

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.

Whether or not these paragraphs are libelous, tortious or of a quality that threatens or intimidates the letter's recipients depends on an examination of the totality of the circumstances surrounding the letter and its effect and by contemplation of the writer's intent and the reaction of its recipients.

There is no credible evidence that the defendant acted out of spite or with ill-will toward any of the plaintiffs. He did not know the plaintiffs; he was unfamiliar with the game prior to encountering it at a social cocktail party in late October 1980, in Washington, D.C.; he had no knowledge concerning the marketing of games in general or of "Public Assistance" in specific.

The Court finds that Mr. Brezenoff was motivated in good faith by his concern for and support of the concept of public assistance and his desire to rebut undeserved barbs and factual representations made by the game that he considered to be erroneous, derogatory, unfair and counterproductive. The Brezenoff letter was well within the scope of his station as the top administrator of public assistance in New York City to comment on controversies surrounding public assistance recipients or administrators. The game was released at a time when there was nationwide controversy and partisan hostility to welfare benefits in general and when important State legislation was pending. The defendant had frequently engaged in the public debate concerning public welfare in the media and by lecturing on the subject. He had the responsibility to express Agency policy on social service issues and the integrity of its administration and to inform the...