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Hammerhead Enterprises Inc. v. Brezenoff

April 28, 1983


Appeal from a judgment entered, after a bench trial, on an order of the United States District Court for the Southern District of New York, Milton Pollack, Judge, dismissing appellants' complaint which alleged a violation of First Amendment rights. Appellants also challenge the rejection of their claims based on libel, defamation, and tortious interference with contractual relations. Affirmed.

Author: Kaufman

Before: KAUFMAN and NEWMAN, Circuit Judges, and LASKER, District Judge.*fn*

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 institutuions 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.

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 self-government. See Federal Election Commission v. Hall-Tyner Election Campaign Committee, 678 F.2d 416 (2d Cir. 1982), cert. denied, 459 U.S. 1145, 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, No. 80-7709 (2d Cir. Sept. 29, 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 polciy.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.


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, 11 L. Ed. 2d 686, 84 S. Ct. 710 (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.

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.

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 ...

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