Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc.

• Decision Date: 09 July 1992
• Docket Number: D,No. 1302,1302
• Citation: 968 F.2d 286
• Parties: JEWS FOR JESUS, INC., David A. Lipkowitz, Plaintiffs-Appellants, v. JEWISH COMMUNITY RELATIONS COUNCIL OF NEW YORK, INC., Michael Miller, Robert Kaplan, Philip D. Abramowitz, Defendants-Appellees. ocket 91-9268.
• Court: U.S. Court of Appeals — Second Circuit

Page 286

968 F.2d 286

61 USLW 2051

JEWS FOR JESUS, INC., David A. Lipkowitz, Plaintiffs-Appellants, v. JEWISH COMMUNITY RELATIONS COUNCIL OF NEW YORK, INC. Michael Miller, Robert Kaplan, Philip D Abramowitz, Defendants-Appellees.

No. 1302, Docket 91-9268.

United States Court of Appeals Second Circuit.

Argued April 6, 1992.

Decided July 9, 1992.

Jay Alan Sekulow, Atlanta, Ga. (James M. Henderson, Atlanta, Ga., Elliot C. Rothenberg, Minneapolis, Minn., Eric A. Daley, Hauppauge, N.Y., of counsel), for plaintiffs-appellants.

Theodore B. Van Itallie, Jr., New York City (Harman Avery Grossman, Jamie Larowitz, Paul Skip Laisure, Patterson, Belknap, Webb, & Tyler, of counsel), for defendants-appellees.

Before: FEINBERG, WINTER, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

The dispute in the underlying action centers upon the breach of a contract for public accommodations between plaintiff-appellant Jews for Jesus, Inc. ("JFJ"), a California not-for-profit religious corporation, and the Stevensville Country Club ("Stevensville"), a resort facility in Swan Lake, New York.

Upon learning of this contract, defendants-appellees Jewish Community Relations Council of New York, Inc. ("JCRC"), a New York corporation and umbrella organization comprised of approximately sixty Jewish groups, Michael Miller, executive director of JCRC, and Philip D. Abramowitz and Robert Kaplan, respectively a director and officer of JCRC's Task Force on Missionaries and Cults, together with non-party Agudath Israel of America ("AI"), an Orthodox Jewish group that had booked space at the Stevensville shortly after JFJ, undertook a course of conduct designed to make the Stevensville breach its contract with JFJ. Among other things, defendants-appellees and AI threatened the Stevensville with an economic boycott by the Jewish community unless the Stevensville cancelled JFJ's contract. As a result of their efforts, the Stevensville cancelled the contract.

JFJ and plaintiff-appellant David A. Lipkowitz, a California resident and member of JFJ, thereafter commenced the underlying action in the United States District Court for the Southern District of New York, (Richard Owen, Judge ), raising claims under various federal and state anti-discrimination statutes and a common law claim for tortious interference with contract. Defendants filed a motion for summary judgment arguing, among other things, that their conduct was expression protected by the First Amendment and that, in any event, plaintiffs had failed to state a claim upon which relief could be granted. Plaintiffs filed a cross-motion for summary judgment. Without discussing the merits of the underlying claims, the district court ruled that defendants' actions constituted speech protected by the First Amendment. The court therefore granted defendants' motion and denied plaintiffs' cross-motion for summary judgment. Jews For Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 768 F.Supp. 467, 470 (S.D.N.Y.1991).

On appeal, JFJ and Lipkowitz challenge the district court's judgment, contending that defendants' "speech," primarily in the form of an economic boycott, is not entitled to protection under the First Amendment because it was used solely to compel the Stevensville to cancel its contract with JFJ.

For the reasons set forth below, we reverse the judgment of the district court and remand the case for trial consistent with this opinion.

BACKGROUND

Drawing all inferences in favor of plaintiffs-appellants, as we must on this appeal from a grant of summary judgment, the relevant facts are as follows. As described by the district court, JFJ "is an evangelical missionary society whose followers, Jews and non-Jews alike, believe that Jesus was the Messiah, a belief that conflicts with traditional Jewish doctrine." Jews For Jesus, 768 F.Supp. at 468. Following efforts by the Stevensville to solicit business from it, JFJ entered into a contract with the Stevensville in April 1987 for accommodations and meals for JFJ's "Ingathering," an annual meeting of JFJ members and their families for discussion and worship. JFJ expected approximately 350 people to attend the Ingathering, scheduled for November 19-22, 1987. Although the Stevensville is a kosher facility, it serves a Jewish and non-Jewish clientele.

Defendants learned of the contract between JFJ and the Stevensville in May 1987. At that time, defendant Kaplan contacted Kenneth Dinnerstein, president of the Stevensville, and demanded on behalf of JCRC that he cancel JFJ's reservations because JFJ was a "bad group." JCRC subsequently learned that AI, which was not a member organization of JCRC, had contracted with the Stevensville for accommodations for AI's annual convention, to be held from November 26-29, 1987. AI was unaware of JFJ's scheduled Ingathering. JCRC thereafter contacted AI, informed it of JFJ's plans, and asked if AI would still hold its convention at the Stevensville. AI indicated that it would not. According to the deposition testimony of Rabbi Morris Sherer, president of AI, AI perceived JFJ "as a missionary group that harms basic religious interests of our people." He further indicated that JFJ used "deceptive tactics" in attempting to influence Jewish youth.

At AI's request, JCRC contacted four other Jewish groups and asked whether they would consider using a kosher catering or hotel facility that JFJ used or planned to use. All four organizations responded negatively.

JCRC and AI next contacted Mehl caterers, a kosher catering facility that subleases the Stevensville and books it over the Passover holiday. AI had hired Mehl to cater AI's planned convention at the Stevensville. AI told Mehl that if the Stevensville honored its contract with JFJ, AI would have to cancel its convention. Mehl subsequently contacted the Stevensville to voice its concern over JFJ's reservations. AI also called the Stevensville and threatened to breach its contract unless the JFJ contract was cancelled.

Finally, on July 28, 1987, the JCRC, through its executive director Michael Miller, contacted the Stevensville's President, Dinnerstein. According to Dinnerstein's affidavit, Miller told him that "the only thing that made economic sense for [the Stevensville] was to cancel Jews for Jesus' reservations" and that if the Stevensville did not break the JFJ contract, "there would be a total boycott of the Stevensville [ ] by the Jewish community," "there would be a one hundred and eighty degree turnaround in Jewish support for the Stevensville" which "would result in a very stiff penalty," and the Jewish Press would be contacted.

As a result of these threatened economic sanctions, which Dinnerstein believed might bankrupt the Stevensville if implemented, Dinnerstein cancelled the JFJ contract and returned JFJ's deposit. Jews for Jesus, 768 F.Supp. at 469.

JFJ and Lipkowitz subsequently commenced the underlying action in the United States District Court for the Southern District of New York, claiming that defendants violated their civil rights under federal and state law and unjustifiably interfered with JFJ's contract with the Stevensville. Specifically, plaintiffs alleged in their amended complaint that defendants: conspired to deprive them of their civil rights in violation of 42 U.S.C. § 1985(3) (1988) (Count One); neglected to prevent conspiratorial wrongs, in violation of 42 U.S.C. § 1986 (1988) (Count Two); tortiously and intentionally interfered with JFJ's contract (Count Three); and deprived them of their civil right to obtain public accommodations without discrimination on account of race and/or creed, in violation of New York Civ.Rights Law §§ 40 & 41 (McKinney 1976) (Count Four) and New York Executive (Human Rights) Law § 296 (McKinney 1982 & Supp.1992) (Count Five).

After a period of discovery, defendants moved for summary judgment, claiming that their conduct was speech protected by the First Amendment and, in any event, plaintiffs' claims failed as a matter of law. Plaintiffs cross-moved for summary judgment. Without discussing the merits of plaintiffs' claims, the district court agreed with defendants that their actions, whether viewed as speech or conduct, were protected under the First Amendment. Jews for Jesus, 768 F.Supp. at 470. The district court recognized that the purpose of defendants' "speech" was to make the Stevensville break its contract with JFJ, ostensibly to safeguard the integrity of the Jewish faith against JFJ. However, the district court, relying principally on NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), reasoned that "plaintiff[s] would have no cause to complain if the defendants simply stopped patronizing the Stevensville without explaining why[, and] [t]he fact that the defendants decided to collectively convey their message" i.e., that there would be a Jewish boycott unless JFJ's contract were broken, did not remove their actions from the ambit of First Amendment protection. Jews for Jesus, 768 F.Supp. at 470.

Accordingly, the district court granted defendants' motion for summary judgment, denied plaintiffs' cross-motion, dismissed the federal claims, and declined to retain jurisdiction over the state claims. In an amended judgment, the court also dismissed plaintiffs' state law claims. This appeal followed.

DISCUSSION

We review the district court's grant of summary judgment de novo. E.g., Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). Viewing the evidence in the light most favorable to the non-moving party, we can affirm the judgment of the district court only if we determine that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Id.

Cognizant of the prudential mandate against unnecessary adjudication of constitutional issues, see, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S....