The opinion of the court was delivered by: William C. Conner, District Judge:
Plaintiff David Wojnarowicz moves this Court to hold defendants
the American Family Association (the "AFA") and Donald E. Wildmon
in civil contempt of this Court's Order of September 24, 1990, by
reason of their continued dissemination of an AFA pamphlet which
that Order enjoined them from disseminating.
Familiarity with the Court's prior orders and opinions in this
case is presumed. Following a one-day, non-jury trial on June 25,
1990, the Court held that defendants had violated plaintiff's
rights under the New York Artists Authorship Rights Act, N Y
Arts & Cult. Aff. Law § 14.03 (Consol.Suppl. 1990). In its order
of August 8, 1990, the Court enjoined defendants from further
dissemination of the AFA pamphlet in question and ordered
defendants to distribute a corrective mailing to each of the
recipients of the pamphlet. Wojnarowicz v. American Family
Association, 745 F. Supp. 130, 141 (S.D.N.Y. 1990).
Defendants do not contest plaintiff's allegation that on July
30, 1990, they sent a copy of the AFA pamplet in controversy to
Ms. Bari Pallis, of Chicago, Illinois. Defendants further
acknowledge that on March 26, 1991, they mailed a copy of the
same pamplet to Mr. William Wolff of Los Angeles, California in
response to an inquiry by Mr. Wolff for information generally
related thereto. It is not in dispute that both
mailings contained the very AFA pamplet which this Court enjoined
defendants from disseminating.
In deciding whether defendants may be held in civil contempt
for their actions, the Court must determine whether defendants
have ". . . diligently attempted in a reasonable manner to
comply . . ." with this Court's order. New York State Nat'l Org.
for Women v. Terry, 886 F.2d 1339, 1351 (2nd Cir. 1989), cert.
denied, ___ U.S. ___, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990).
After carefully reviewing the affidavits of the parties and
having questioned defendant Wildmon at a Court conference held
with attorneys for both sides present on June 26, 1991, I find
that defendants exercised reasonable diligence in complying with
this Court's injunctive order of September 24, 1990.
While the Court is troubled by the mailings and the potential
damage that may come to plaintiff therefrom, it finds no
"willfulness" on the part of defendants and concludes that the
mailings were mistakes from which no malevolence may be presumed.
See Cancer Research Institute v. Cancer Research Society,
744 F. Supp. 526, 529 (S.D.N.Y. 1990). Defendants are, however,
adjured to exercise extreme diligence and caution to prevent
future violations of this Court's Order. Any additional mailings
of the proscribed materials may reflect the callous indifference
necessary for a finding of civil contempt.
For the reasons stated above, plaintiff's motion to hold
defendants in civil contempt of this Court's Order of September
24, 1990 is denied. Plaintiff's request that it be awarded its
costs and attorneys' fees is also denied.
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