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July 29, 1991


The opinion of the court was delivered by: Owen, District Judge:


Defendants in this case decided that they would not patronize a particular hotel because they did not wish to share facilities with members of Jews for Jesus. Jews for Jesus' resulting lawsuit challenges the defendants' ability to convey that information to the hotel in question. The question posed by this summary judgment motion is whether the defendants' conduct is protected by the First Amendment. I conclude that it is.

Some time in 1987, the Jewish Community Relations Council, an umbrella organization comprised of about 60 Jewish groups, learned that Jews for Jesus was having its yearly Ingathering at the Stevensville Country Club, a kosher resort facility in the Catskills region of New York State.*fn1 Jews for Jesus is an "evangelistic missionary society" whose followers, Jews and non-Jews alike, believe that Jesus was the Messiah, a belief that conflicts with traditional Jewish doctrine. JCRC, among other Jewish organizations, feels that Jews for Jesus uses deceptive tactics in promoting its doctrine and, in particular, that Jews for Jesus missionaries fraudulently and misleadingly use Jewish symbols to associate themselves with Judaism and to attract followers.

According to plaintiff's version of the facts, which for purposes of this motion I accept as true, JCRC also learned that Agudath Israel, an Orthodox Jewish group, was scheduled to have its annual meeting at the Stevensville a week after the planned Jews for Jesus event. JCRC contacted Agudath Israel, told it about Jews for Jesus' reservations at the Stevensville, and inquired whether Agudath Israel would still have its meeting at the Stevensville. Agudath Israel said it would not.*fn2

Acting at the behest of Agudath Israel, JCRC also called four other Jewish organizations and asked them "if a circumstance would arise that it would be known that Jews for Jesus were using or planning on using a kosher catering facility or the like and you had plans to use the same facility, would you, in fact, continue to plan to use the same facility."*fn3 Those groups also said that they would not use the same hotel facility as Jews for Jesus.

Finally, JCRC and Agudath Israel separately contacted Mehl Caterers, a Glatt kosher catering concern that subleases and books the Stevensville over the Passover holiday. Agudath Israel had hired Mehl to cater the group's upcoming convention at the Stevensville. Like Agudath Israel, Mehl perceived the Jews for Jesus reservations as a problem and the caterer's president contacted the Stevensville to voice his concern.*fn4

Having thus conferred with the various Jewish entities, JCRC Executive Director Michael Miller contacted Kenneth Dinnerstein, the Stevensville's President.*fn5 Mr. Dinnerstein states in an affidavit that JCRC told him that if the hotel hosted the Jews for Jesus event, the Jewish community would boycott the hotel, "there would be a one hundred and eighty degree turn-around in Jewish support for the Stevensville Country Club," and the Jewish Press newspaper would be contacted.*fn6 Dinnerstein cancelled the Stevensville's contract with Jews for Jesus and returned the group's deposit. Dinnerstein explained that he made the choice he did because "the economics of these threatened sanctions could have resulted in bankruptcy for the Stevensville Country Club."

Jews for Jesus sued JCRC, alleging a conspiracy to violate plaintiff's civil rights under 42 U.S.C. § 1985(3) and 1986, as well as under state law.*fn7 Both parties now move for summary judgment, their contentions focusing on whether defendants' speech was protected by the First Amendment.

In order to facilitate the analysis of this issue, it is useful to view the defendants' speech in two parts. First, there are the private conversations in which the various Jewish groups communicated to each other that, in order to protect the integrity of their religion, see supra note 2, they did not wish to patronize a hotel that also accommodated Jews for Jesus. Those conversations obviously involve pure speech, which is protected by the First Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).*fn8 See also Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (Ku Klux Klan's expression of racist ideas protected by First Amendment).

The second part of defendants' speech involves the communication of the defendants' desire not to patronize a hotel also used by Jews for Jesus to a third party, the Stevensville Hotel. At the outset, whether one considers that speech or conduct, it definitely is not an unlawful economic boycott under Federal Trade Commission v. Superior Court Trial Lawyers' Association, 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990), as plaintiff argues.*fn9 To the contrary, I conclude that the speech is protected under the First Amendment.

The only difference between the first speech (the speech amongst the Jewish organizations) and the second speech (the communication of the first speech to Mr. Dinnerstein) is that the second speech arguably had a purpose, to encourage the Stevensville to cancel the Jews for Jesus reservations or else, presumably, the defendants would find another hotel to patronize to protect their religious purity. It would seem clear that the plaintiff would have no cause to complain if the defendants had simply stopped patronizing the Stevensville without explaining why. The fact that the defendants decided to collectively convey their message, however, brings this case within NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), in which the Court upheld NAACP members' boycott of white merchants to force political and business change on the ground that it was fully protected by the First Amendment. See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Weiss v. Willow Tree Civic Ass'n, 467 F. Supp. 803, 817 (S.D.N.Y. 1979).

Because I conclude that defendants' speech is protected by the First Amendment, summary judgment is granted in their favor. This ruling is limited to the federal claims herein asserted, and since I decline to retain jurisdiction over plaintiff's ...

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