Waterman, Moore and Kaufman, Circuit Judges. Waterman, Circuit Judge (concurring). Moore, Circuit Judge (concurring in the result).
IRVING R. KAUFMAN, Circuit Judge:
The orderly functioning of our judicial system and the protection of our citizens require that legal advice should be offered only by those who possess the requisite qualifications and authorization for the practice of law. At the same time, one of the most fundamental principles of our system of government prohibits any restraint on a citizen's right to disseminate his views on important public issues. In this case, we are called upon to resolve a conflict between these two important interests. Judge Wyatt's principal ground for dismissing the complaint was that the doctrine of immunity was an absolute bar to this litigation. We must therefore determine whether a bar association has immunity in a civil action arising out of its attempt to restrict the distribution of a book in the exercise of its statutory power to initiate prosecutions for the unauthorized practice of law.*fn1
Plaintiff Norman Dacey, who is not an attorney, published a book bearing the title How To Avoid Probate ! The book was highly successful. It enjoyed a long run on the best-seller list and a sale of more than 750,000 copies. How To Avoid Probate ! begins with a five-page critique of the probate court system and of the lawyers who maintain and tolerate its continued existence. The criticism consists mostly of quotations from academics or the popular press and of anecdotes concerning individuals whose experiences with the probate system have been particularly unsatisfactory. Dacey sets forth illustrations of conflicts of interest on the part of probate judges and probate attorneys, of exorbitant fees charged by special guardians and court-appointed appraisers.
Having made his case that "probate" should be avoided, Dacey goes on to suggest that it is possible, indeed, easy to do so. In a few pages, he characterizes the revocable inter vivos trust as "a legal wonder drug," "a magic key to probate exemption." The remainder of the book's 360 pages consists largely of forms for trusts and wills, all of which are provided in duplicate, and accompanying instructions for their use.*fn2 The implicit suggestion is that through the use of these forms an individual may preserve almost all of his property from what Dacey views as the ravages of the probate system.
In January 1967, acting under authority conferred upon it by § 750, subd. B of New York Judiciary Law, McKinney's Consol.Laws, c. 30,*fn3 the defendant New York County Lawyers' Association instituted a proceeding to have Dacey, his publisher, and two booksellers adjudged in criminal contempt for the unauthorized practice of law and to have the sale and distribution of How To Avoid Probate ! enjoined.*fn4 After a hearing, a Special Term of the New York Supreme Court refused to hold the publisher and booksellers in contempt but did adjudge Dacey in contempt and enjoin the sale and distribution of his book. New York County Lawyers' Ass'n v. Dacey, 54 Misc.2d 564, 282 N.Y.S.2d 985 (Sup.Ct.1967). Two months after the decision of the New York Supreme Court, Dacey brought this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that the commencement by the Association of criminal contempt proceedings for the unauthorized practice of law deprived him of his first amendment right to free speech, and requested that the Association be enjoined from further prosecution of the state court proceeding. Judge McLean denied Dacey's motion for a preliminary injunction, finding neither irreparable injury nor a strong probability that Dacey would prevail at trial.
Meanwhile Dacey had been pursuing his state court appeals from the decision of the New York Supreme Court. He was unsuccessful in the Appellate Division, which in October 1967 upheld the Supreme Court in a four-to-one decision, Justice Stevens dissenting. New York County Lawyers' Ass'n v. Dacey, 28 A.D.2d 161, 283 N.Y.S.2d 984 (1967). Two months later, however, the New York Court of Appeals reversed, one justice dissenting, on the reasoning of Justice Stevens' dissenting opinion in the Appellate Division. New York County Lawyers' Ass'n v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). In concluding that the sale and distribution of How To Avoid Probate ! did not constitute the unauthorized practice of law, Justice Stevens had emphasized that the book was sold to the public at large and that no relationship of personal trust and confidence arose between Dacey and the purchasers of his book.
Fortified by his victory in the New York Court of Appeals, Dacey pressed forward vigorously in his federal court action. In an amended complaint he abandoned his now unnecessary request for a permanent injunction and substituted a demand for $1,500,000 in compensatory damages and $4,500,000 in punitive damages. He also sought to restrain the Association from cooperating with any other organization in an attempt to prevent the distribution of his book on the Association's asserted ground that it constituted the unauthorized practice of law. On October 9, 1968, however, Judge Wyatt granted the Association's motion, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, to dismiss Dacey's amended complaint for failure to state a claim on which relief could be granted. Judge Wyatt concluded that immunity from suit shielded the Association from Dacey's claim for damages. He reasoned that because the Association was performing a prosecutorial function conferred upon it by statute in initiating the contempt proceedings for unauthorized practice against Dacey, it should occupy the same immune status accorded by law to a government prosecutor. Moreover, the district judge held that the Association could avail itself of the defense of "probable cause" and that the grant of a final injunction by the New York Supreme Court and affirmance by the Appellate Division, despite the ultimate reversal by the Court of Appeals, established probable cause for the Association's actions as a matter of law.
It should be emphasized at this juncture that we are not here concerned with the merits of this action. As this is an appeal from an order granting a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, we are concerned only with the factual allegations of the complaint, and these we must accept as true. Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967); see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965); 2A J.W. Moore, Federal Practice para. 12.08, at 2266-67 & n. 3 (2d Ed. 1968). Accordingly, although the Association apparently never attempted to enforce its injunction against Dacey during the pendency of his appeals, we must assume the validity of Dacey's allegations that the mere existence of the injunction had prevented reprinting, distribution and sale of his book and inhibited the expression of the views he was espousing.
At common law, judges could not be held liable in a civil action for acts they performed in the exercise of their judicial functions. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871). The only exception to this strongly rooted rule of judicial immunity arose when a judge took action in cases over which his court clearly lacked subject-matter jurisdiction. Otherwise, it mattered little that his decision was egregiously wrong or that his motives were black. In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), we extended the doctrine of immunity to shield a Special Assistant to the Attorney General of the United States from an action for malicious prosecution. Goff, the Special Assistant, was alleged to have secured appointment as a prosecutor in order to further his malicious design to indict and punish the plaintiff. The absolute immunity we granted to public prosecutors in that case was based on what we believed to be sound considerations of public policy. "Persons occupying such important positions and so closely identified with the judicial departments of the government," Judge Rogers reasoned, "should speak and act fearlessly in the discharge of their important official functions." "They should be no more liable," he continued, "to private suits for what they say and do in the discharge of their duties than are the judges and jurors, to say nothing of the witnesses who testify in a case." 12 F.2d at 406.
Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, which creates liability for the deprivation of rights under color of law and upon which Dacey bases his action, did not abolish the settled principle of judicial immunity. The Supreme Court has clearly instructed that, in the absence of a specific congressional rejection of the doctrine, the immunity of judges for acts within the judicial role must be considered to have survived the enactment of the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). More recently, this court again gave its approval to the extension of the immunity granted to judges, to encompass prosecutors. Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967). A public prosecutor thus possesses the same immunity in an action which seeks to hold him personally liable for official acts under § 1983 as he does to a similar action for malicious prosecution.*fn5
III. The Prosecutorial Role of the Association
We are of the view that when the Association instituted its proceedings against Dacey, its role was analogous to that of a public prosecutor.*fn6 But this is not the end of our inquiry. Chief Judge Learned Hand concluded that the decision to grant immunity to public prosecutors arose from "a balance between the evils inevitable in either alternative." Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950). To decide whether immunity should be extended to a private association performing a prosecutorial function we must strike a similar balance between the interests involved. In analyzing these interests, we discern facets to this case which cause us to pause and question the wisdom of allowing the Association to find sanctuary in the doctrine of immunity on the facts alleged in the complaint.
The objective and effect of instituting criminal contempt proceedings for the unauthorized practice of law against Dacey were to suppress a book.*fn7 The gravamen of the Association's complaint against Dacey was not that he had given specific advice to specific individuals concerning their particular legal problems. Instead, the Association acted to prevent Dacey from disseminating his views to the public generally by means of the publication and distribution of a book. Moreover, the book at which the attack was directed contained a critical discussion of an important public institution -- the probate court -- and of the officials who administer it and practice before it.
The first amendment embodies "a profound national commitment to the principle that debate on public issues [such as the performance of the probate court system] should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The value of Dacey's views is not lessened because they were presented principally in the form of quotations and anecdotes. Judging from the wide circulation which the book received, this format was extremely effective. Nor does it matter that the opinions expressed were contained in a book comprised largely of legal forms. The argument Dacey sought to press upon the public -- the virtue of which we do not pass upon -- was that the infirmities of the probate system required every thoughtful person to avoid the administration of his estate by the probate court. Given this viewpoint, the forms which comprised the bulk of How To Avoid Probate ! buttressed Dacey's argument that the goal he advocated was not only desirable but feasible. Dacey's book was therefore protected by the first amendment's guarantee of free speech and any attempt to suppress it on the ground that it constituted the unauthorized practice of law must be scrutinized with extreme care. This is not to say, however, that the inhibiting effect of the Association's action on protected speech is dispositive of the issue before us. An overzealous public prosecutor may create an unjustified restraint on expression by bringing a completely unwarranted prosecution for obscenity and still be ...