The opinion of the court was delivered by: HAIGHT
At the heart of this litigation lies a motion picture, "Midnight Express. "Midnight Express" is a motion picture dramatization of the experiences of a real-life American student, Billy Hayes. Hayes was prosecuted by Turkish authorities for attempting to smuggle hashish out of Turkey. The film was produced by defendant Columbia Pictures Industries, Inc. It was first exhibited in movie theaters in the United States in the fall of 1978. Subsequently, defendant American Broadcasting Companies purchased the television broadcast rights to the film from Columbia. ABC exhibited the film on its television network on September 21, 1980; August 14, 1983; and July 22, 1984.
It is perhaps an understatement to say that "Midnight Express" portrays certain Turkish law enforcement and governmental authorities in an unflattering light.
This action was commenced by plaintiff Federation of Turkish-American Societies, Inc. on its own behalf and on behalf of a purported class which, according to P9 of the complaint, consists of:
". . . approximately 300,000 Turkish-Americans residing in the United States whom [sic] havebeen discriminated against in the showing ofthe film 'Midnight Express' and will continue to suffer recurrent discrimination at the hands of the defendants unless this Court grants the relief requested herein."
The relief requested, in addition to certification as a class action, includes an injunction against further distribution or showing of the film in the United States, and the award of compensatory and punitive damages.
Plaintiff Federation of Turkish-American Societies, Inc. is alleged to be a not-for-profit New York corporation, serving as an umbrella organization for twenty-three not-for-profit corporations concerned, in one way or another, with Turkish-American individuals, organizations, and affairs.
The complaint contains three counts. The first count invokes the federal civil right laws, specifically, 42 U.S.C. § 1985(3). The second count invokes the New York Civil Rights law, § 40-c. The third count alleges a common-law claim for "mental and emotional distress and financial injuries to Turkish-Americans in all walks of American society. . . ." Complaint, P27.
Defendants now move to dismiss the complaint pursuant to Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted. Because the motion is accompanied by affidavits and other materials falling outside the pleadings, the Court treats the motion as one for summary judgment pursuant to Rule 56.
Plaintiff opposes the motion, and cross-moves for leave to amend the complaint and conduct certain discovery.
For the reasons which follow, defendants' motion for summary judgment is granted. Plaintiff's cross-motion is denied. The complaint will be dismissed.
Motion pictures constitute a form of speech protected by the First Amendment to the United States Constitution. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 96 L. Ed. 1098, 72 S. Ct. 777 (1952); United States v. A Motion Picture Film Entitled "I am Curious-Yellow," 404 F.2d 196 (2d Cir. 1968); Natco Theatres, Inc. v. Ratner, 463 F. Supp. 1124, 1128 (S.D.N.Y. 1979); Man v. Warner Bros. Inc., 317 F. Supp. 50, 52 (S.D.N.Y. 1970).
In the circumstances of the case at bar, the First Amendment protection afforded to "Midnight Express" is absolute, and forecloses any conceivable theory of liability available to the plaintiff or to ...